ODISHA PUBLIC SERVICE COMMISSION DECIDED TO PROVIDE XEROX COPY OF ANSWERSHEETS TO CANDIDATES WHO DEMANDS IT

ODISHA PUBLIC SERVICE COMMISSION DECIDED TO PROVIDE XEROX COPY OF ANSWERSHEETS TO CANDIDATES WHO DEMANDS IT

http://opsc.nic.in/Notice_5221_19_7_12.pdf
ODISHA PUBLIC SERVICE COMMISSION
CUTTACK
N O T I C E
No. 5221 /PSC, dt. 19/07/2012
The following fees have been prescribed by the Commission for supply of
Mark Sheet and Xerox copy of Answer Scripts to the  concerned candidate of
various recruitment examination conducted by the Commission.
1. Mark Sheet  --Rs.200/-(Rupees two hundred) only
2. Xerox copy of Answer Script --Rs.200/-(Rupees two hundred) only
                (per paper)
The candidates who desire to take such Mark Sheet/Xerox copy of Answer
Scripts are required to pay non-refundable and non-adjustable prescribed fee
either  in shape of deposit of the amount in the Government Treasury under the  Head
“0051-P.S.C.-105-State P.S.C. Examination Fees”, or Account Payee Bank Draft/Pay
Order drawn in favour of Special Secretary, Odisha Public Service Commission payable
at any Scheduled Bank at Cuttack.  Treasury Chalan with wrong mention of Head of
Account or wrong mention of designation of the authority in the Bank Draft/Pay Order
shall not be accepted.  The original Treasury Chalan/Bank Draft/Pay Order, as the
case may be, must be sent to the office of the Commission along with the application
mentioning details of recruitment/examination, Roll No., Name and address for
supply of Mark Sheets & Xerox copy of Answer Script.
2. The above order will come into force from the date of issue of this Notice.
Special Secretary.

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

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

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

Disclose question-wise marks of civil services mains exam: HC, CIC

Disclose question-wise marks of civil services mains exam: HC, CIC

http://bit.ly/QvDcVx

The Delhi High Court and the Central Information Commission have directed the Union Public Service Commission to disclose the question-wise marks obtained by students in each paper of the civil services (mains) examination.

In his July 10 order Chief Information Commissioner Satyanand Mishra has directed the UPSC to “disclose the evaluated answer sheets written by appellant” in the civil services (mains) examination “after duly severing the names and/or signature of the examiner or any other third party information”.

This direction was given on an appeal filed by A Arun Thamburaj, who appeared in CSE (mains) in November 2010. He requested for marks awarded in each paper, question-wise marks in paper I and II, and photocopies of his written answer scrips.

Earlier, hearing two writ petitions on July 6 the HC had asked the UPSC to disclose answer sheets of mains examination to respective candidates. The writ petitions were filed by Manish Parashar and Gaurav Gupta, respectively.

These orders, if implemented, will benefit nearly 15,000 aspirants who appear every year in CSE (mains) examination.

Though there are several orders by the CIC, HC and the Supreme Court to disclose the cut-off marks for prelims, the UPSC is not ready for it and has been approaching courts against those orders.

In its July 13 order in an LPA filed by the UPSC and appeals filed by Angesh Kumar and Durgesh Kumar Tripathi, the acting Chief Justice of Delhi High Court, Justice Rajiv Sahai Endlaw, said: “An examinee is entitled to satisfy himself/herself as to the fairness and transparency of the examination and the selection procedure and to maintain such fairness and transparency disclosure of raw marks, cut-off marks and the scaling method adopted is a must.”

The HC was also miffed with the UPSC approaching it again and again on disclosure orders. The court said: “Though the UPSC has indulged in re-litigation but giving benefit of doubt to UPSC that the resistance to disclose is an after effect of the pre-RTI era, we refrain from imposing any cost on UPSC.”

KERALA HIGH COURT ORDER DIRECTING KERALA PUBLIC SERVICE COMMISSION TO GIVE EVALUATED ANSWERSHEETS UNDER RTI act, 2005

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33718 of 2010(L)


1. THE KERALA PUBLIC SERVICE COMMISSION
                      ...  Petitioner
2. THE STATE PUBLIC INFORMATION OFFICER
3. APPELLATE AUTHORITY & ADDITIONAL

                        Vs



1. STATE INFORMATION COMMISSION,KERALA
                       ...       Respondent

2. ASHA BHASKAR

                For Petitioner  :SRI.P.C.SASIDHARAN, SC, KPSC

                For Respondent  :SRI.M.AJAY, SC, STATE INFORMATION COMMN

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :09/03/2011

 O R D E R
            Thottathil B.Radhakrishnan

                         &

               P.S.Gopinathan, JJ.

  = = = = = = = = = = = = = = = = = = = = = = = =

     W.P.(C).Nos.33718/2010-L, 5755/2007-I,
     12297/2007-L, 3585/2008-B, 15363/2008-D,
     15424/2008-J, 22386/2008-M, 6177/2010-V,
     9250/2010-E, 25779/2010-V, 23839/2010-D,
    32772/2010-V, 12032/2009-Y, 12160/2009-L,
    34585/2007-P, 33620/2009-V, 35723/2008-C,
    22398/2008-N, 15426/2008-J, 22230/2007-U,
     6355/2010-T, 22231/2007-V, 3577/2008-A,
    12312/2007-N, 23458/2008-P, 37772/2008-V,
    11876/2009-D, 23539/2008-B, 11687/2009-E,
     33616/2009-V, 11042/2010-E, 2207/2008-K,
     10971/2010-V, 5978/2010-V, 35840/2008-N
                  & 5622/2007-T

  = = = = = = = = = = = = = = = = = = = = = = = =

       Dated this the 9th day of March, 2011.

                     Judgment

                                         "CR"

  Thottathil B.Radhakrishnan, J.

1.These  writ  petitions  raise   the  question  of

 applicability of the Right to Information Act,

 2005, hereinafter referred to as the "RTI Act" to

 the    Kerala    Public     Service    Commission,

 hereinafter, "PSC", for short. These matters are

WPC33718/10 & con.cases     -: 2 :-

 referred      to     the Division    Bench noticing  an

 apparent conflict between the decisions of this

 Court in Public Information Officer, University

 of   Calicut and        another    v. State Information

 Commission[2010(1) KHC 2], for short, "UNICAL",

 and Treesa Irish v. Central Public Information

 Officer[2010(3) KLT 965], "TREESA", for short.



2.The PSC challenges different decisions of the

 State Information Commission, "SIC", for short,

 overruling its stand that information with the

 PSC cannot be accessed under the RTI Act and that

 the   answer       scripts,   marks  awarded, including

 interview marks and other details touching the

 process of examination and interview cannot be

 made available, except to the extent provisions

 are made for such access by the regulations and

 decisions of the PSC.



3.In support of the writ petitions, Adv. Alexander

 Thomas, the learned standing counsel for the PSC

 argued that the substantive source of the right

 to information is the constitutional provision in

WPC33718/10 & con.cases    -: 3 :-

 Article 19(1)(a) and hence, what is not available

 as part of that right cannot be treated as

 available under the RTI Act. He argued that RTI

 Act applies only to the extent of the concept of

 "information" as deducible from Article 19(1)(a)

 of    the     Constitution       and  not  beyond.  He,

 therefore, said that if a particular information

 would fall beyond the pale of Article 19(1)(a),

 the same would not be accessible under the RTI

 Act. Making reference to the decisions of this

 Court in Thalapalam Service Co-operative Bank

 Ltd.     v.     Union   of     India[2009(2) KLT   507]

 (Thalapalam I), Thalapalam Service Co-operative

 Bank Ltd. v. Union of India[2009(3) KLT 1001]

 (Thalapalam        II) and S.N.College     v. State  of

 Kerala[2010(1)        KLT  691](S.N.College),   it  was

 argued that it has been held in those cases that

 the concept of information under RTI Act is with

 reference         to   Article      19(1)(a)   of   the

 Constitution. He accordingly argued that beyond

 that, the provisions of the RTI Act cannot be

 extended.      He said that this restrictive approach

 has to be applied since it has been held by the

WPC33718/10 & con.cases     -: 4 :-

 Apex     Court      in  Maharashtra      State  Board   of

 Secondary      and    Higher      Secondary  Education  v.

 Paritosh      Bhupeshkumar        Sheth[(1984)4  SCC  27],

 hereinafter,        Paritosh,     that  in  terms  of  the

 Constitution, there is no right to information,

 including as regards answer scripts. He said that

 the law laid by the Apex Court in that regard is

 also that if such right is recognized, it would

 lead to acceding to a further right to demand

 revaluation and such situation would necessarily

 lead    to     uncertainty,       lack  of   finality  and

 administrative        inconvenience     to  the  examining

 bodies. He also pointed out that even in terms of

 the    Constitution,      principles      of  secrecy  and

 public interest immunity would stand to advise

 that     information      in      relation   to  PSC,   in

 particular,       matters    relating    to  examinations,

 ought not to be released as information, invoking

 the provisions of the RTI Act. He also made

 reference       to    Secy.,      W.B.Council  of   Higher

 Secondary      Education      v.    Ayan  Das[(2007)8 SCC

 242], Pramod Kumar Srivastava v. Chairman, Bihar

 Public     Service      Commission[(2004)6     SCC   714],

WPC33718/10 & con.cases      -: 5 :-

 Board of Secondary Education v. Pravas Ranjan

 Panda[(2004)        13 SCC     383], H.P.Public   Service

 Commission       v    Mukesh   Thakur[(2010)6   SCC 759],

 Sidhik v. State of Kerala[2010(1) KLT 113] and

 the decision of the Apex Court in Kerala Public

 Service Commission v. Narayanan Kunchumbidukka

 [Civil Appeal No.461 of 2008][Ext.P6 in WP(C).

 33718/2010], to argue that the said decisions

 categorically lay down that access to information

 in   relation       to   examination    materials is  not

 permissible        except   to     the extent  where  the

 examining body permits such access on the basis

 of regulations or decisions that it has taken for

 the    management        of    affairs   in  relation  to

 examinations.         Adv.    Alexander   Thomas   further

 argued that the Commission has a fiduciary role

 qua the society in public interest and it holds

 and acts in trust; in public interest; in a

 fiduciary capacity qua the public at large. He

 said    that      the   term     "fiduciary capacity"  in

 Section     8    of    the  RTI     Act needs  to  be  so

 understood. He argued that information regarding

 examiners and others involved in the process has

WPC33718/10 & con.cases    -: 6 :-

 to be maintained in secrecy. Otherwise, it would

 lead    to    different   situations    which  would be

 susceptible even to corruption. Dilating on the

 concept of fiduciary status, he argued that the

 restricted       concept of      fiduciary relations as

 understood in private law is not applicable and

 the concept of fiduciary relations in the context

 of public trust and public involvement should be

 a larger concept.



4.Adv. M.Ajay, the learned counsel for the SIC

 argued that the decisions rendered by this Court

 in Thalapalam I & II and S.N.College do not lay

 down any principle of restrictive approach in

 appreciating the concept of information for the

 purpose of the RTI Act. He said that this Court

 had    only     indicated    in   those  decisions, the

 evolution of law in that regard. He further

 argued that the basic approach of the RTI Act is

 one that conceives maximum disclosure and minimum

 exemptions. This, he said, is discernible from

 the RTI Act as a whole and also on the basis of

 its Preamble and the Statement of Objects and

WPC33718/10 & con.cases     -: 7 :-

 Reasons. He made reference to the decisions of

 the    Delhi      High   Court      in  ICAI  v.   Central

 Information          Commissioner      &   another[W.P(C).

 No.8529 of 2009], Allahabad High Court in Public

 Information         Officer       v.   State   Information

 Commission, U.P. and others[W.P.No.3262 (MB) of

 2008], Pritam Rooj v. University of Calcutta[AIR

 2008 Cal.118], University of Calcutta v. Pritam

 Rooj[AIR 2009 Cal.97], The Tamil Nadu Public

 Service Commission v. The Tamil Nadu Information

 Commission[W.P.No.34630/2007 & connected cases],

 D.Parisuthanathan           v.       Public    Information

 Officer/Registrar        General,     High  Court,  Madras

 [W.P.No.1285/2009 & connected cases], Tamil Nadu

 Road Development Company Limited v. Tamil Nadu

 Information           Commissioner[W.A.No.811/2008       &

 M.P.No.1/2008]          and      Union   Public    Service

 Commission v. Shiv Shambhu[2008-ILR Delhi 17-

 2016 :2008(TLS) 141374] and Secretary General,

 Supreme      Court     of  India     v.   Subhash  Chandra

 Agarwal[LPA         501/2009],      to  argue   that   the

 provision for information in terms of the RTI Act

 has   to     be    understood     on  the   basis of   the

WPC33718/10 & con.cases     -: 8 :-

 definition       of   "information"   in that Act. He

 further argued that the validity of the RTI Act

 not being under challenge, there is no reason to

 tinker with the specific definition given by the

 legislature to the term "information" in the RTI

 Act. He argued that the RTI Act is a self

 contained Code and it should be taken that the

 Parliament were aware of the laws as laid by the

 Apex Court while it made the RTI Act and if it

 intended to make any departure in the case of

 examinations etc., such departure or exception

 would have necessarily found expression in the

 Act itself. He pointed out that the fiduciary

 concept is not available as a plea for the PSC to

 deny    information     under     the RTI Act and the

 fiduciary relationship as projected by the PSC,

 has no application because the intention of RTI

 Act is to provide information, with the ultimate

 goal to ensure purity and transparency in matters

 relating to governance and selection. He said

 that, by all means, PSC cannot but be treated as

 part of the process of governance of the State.

WPC33718/10 & con.cases    -: 9 :-

5.Section 3 of the RTI Act provides that, subject

 to the provisions of that Act, all citizens shall

 have the right to information. That right is

 defined in section 2(j) of the RTI Act. It is the

 right to information, accessible under that Act,

 which is held by or under the control of any

 public authority. It includes the right to access

 any information as stated in that provision.

 Every      public      authority   stands with the

 obligations cast on it under section 4 of that

 Act. The PSC does not, and cannot, have the

 contention that it is not a "public authority" as

 defined in section 2 (h) of the RTI Act. The

 obligations in terms of section 4 of the Act are

 incurred by any authority or body or institution

 which would be a public authority in terms of

 section 2 (h) of that Act. Adverting to section 8

 of that Act, it can be seen that there is no

 institutional exception or exemption from the

 applicability of the provisions of the Act. The

 exemption from disclosure of information provided

 for by section 8 of that Act is one based on the

 type or class of information. In the absence of

WPC33718/10 & con.cases    -: 10 :-

 any such exemption being granted to any class or

 type of information with any public authority,

 the obligations of that public authority in terms

 of the Act and the susceptibility of information

 with it, to access in terms of the provisions of

 the RTI Act cannot be avoided. Thus, PSC having

 been brought under the trappings of the RTI Act,

 it is not conferred with the immunity as an

 institution, from the obligations, liabilities

 and exposure of information held by or under its

 control, in terms of that Act. There is also no

 provision in section 8 of that Act classifying

 any information as eligible for exemption from

 disclosure.



6.Section 2 of the RTI Act is the dictionary of

 that    legislation.     It       contains  "Definitions".

 Clause (f) thereof says that "information" means

 any material in any form, including records,

 documents,       memos,  e-mails,      opinions, advices,

 press     releases,     circulars,     orders,  logbooks,

 contracts, reports, papers, samples, models, data

 material      held     in  any      electronic  form  and

WPC33718/10 & con.cases   -: 11 :-

 information relating to any private body which

 can be accessed by a public authority under any

 other law for the time being in force. The

 Honourable Supreme Court stated in Hariprasad

 Shivshanker Shukla v. A.D.Divelkar[AIR 1957 SC

 121], that "There is no doubt that when the Act

 itself provides a dictionary for the words used,

 we must look into that dictionary first for an

 interpretation of the words used in the statute.

 We are not concerned with any presumed intention

 of the legislature; our task is to get at the

 intention as expressed in the statute." When the

 statutory provision defining a particular term

 says that the said term shall mean what is stated

 in that definition clause, it shall mean only

 that; nothing more, nothing less; for the purpose

 of the statute which carries that definition.

 When a statute says that a word or phrase shall

 "mean" -- not merely that it shall "include" --

 certain things or acts, the definition is a hard-

 and-fast      one,    and no     other meaning can be

 assigned to the expression than the one put down

 in   definition.       A definition    is  an explicit

WPC33718/10 & con.cases     -: 12 :-

 statement of the full connotation of a term. -

 See   Punjab       Land   Development   and  Reclamation

 Corpn. Ltd. v. Presiding Officer[(1990) 3 SCC

 682]    and    P.     Kasilingam    v. P.S.G.College  of

 Technology[1995         Supp    (2)  SCC 348]   rendered

 relying on Gough v. Gough[(1891) 2 QB 665: 65 LT

 110]. As noticed in S.N.College, the Legislature

 has the power to define a word even artificially.

 When a statute says that a word or phrase shall

 "mean" a particular thing, certain things or

 acts, that definition is a hard-and-fast one and

 no    other      meaning    can    be assigned  to   the

 expression than is put down in that definition.

 That definition is an explicit statement of the

 full connotation of a term.



7.In CST v. Union Medical Agency[(1981) 1 SCC 51],

 the Apex Court stated that it is a well-settled

 principle that when a word or phrase has been

 defined      in    the   interpretation   clause,  prima

 facie, that definition governs whenever that word

 or phrase is used in the body of the statute. But

 where the context makes the definition clause

WPC33718/10 & con.cases    -: 13 :-

 inapplicable, a defined word when used in the

 body of the statute may have to be given a

 meaning different from that contained in the

 interpretation clause; all definitions given in

 an interpretation clause are, therefore, normally

 enacted      subject    to    the   usual  qualification

 -- "unless there is anything repugnant in the

 subject     or     context",    or "unless the  context

 otherwise requires". Even in the absence of an

 express qualification to that effect, such a

 qualification is always implied. The meaning of a

 word    or    expression     defined  may  have  to  be

 departed      from    on  account   of  the subject  or

 context in which the word had been used and that

 will be giving effect to the opening sentence in

 definition section, namely "unless the context

 otherwise         requires".      In   view   of   this

 qualification, the court has not only to look at

 the words but also to look at the context, the

 collocation and the object of such words relating

 to such matter and interpret the meaning intended

 to be conveyed by the use of the words in a

 particular       section.    But   where  there  is  no

WPC33718/10 & con.cases   -: 14 :-

 obscurity in the language of the section, there

 is no scope for the application of the rule ex

 visceribus actus. This rule is never allowed to

 alter the meaning of what is of itself clear and

 explicit. As observed in Pandey & Co. Builders

 (P) Ltd. v. State of Bihar[(2007) 1 SCC 467],

 in view of the provision "unless the context

 otherwise requires" in the definition clause, one

 may   not     stick    to  the    definition, when the

 provision in the interpretation clause shall lead

 to anomalous and absurd results.            Such course

 shall not be resorted to otherwise.           The court

 cannot read anything into a statutory provision

 which is plain and unambiguous. A statute is an

 edict of the legislature. The language employed

 in a statute is the determinative factor of

 legislative intent.



8.The question of contextual construction of any

 particular provision of the RTI Act and the

 consequential excusing of the PSC from any such

 provision, by using the tool "unless the context

 otherwise      requires"    in   the  opening  part of

WPC33718/10 & con.cases    -: 15 :-

 section 2 of that Act, do not arise. This is

 because, to a large extent, the plea of the PSC

 is that the RTI Act does not apply to all

 information held by it or under its control. The

 argument advanced is that there has to be a

 selective classification of the information held

 by it or under its control. The plea is that

 while information relating to its governance and

 administration may be available for access under

 the RTI Act, information, including materials

 relating      to    examinations,    are  not  accessible

 information         since  they    do   not   relate  to

 governance or administration of PSC. The argument

 is not that the application of the definition of

 the   term     "information",      as  contained in  the

 dictionary       to   the   statute,   interpreting  any

 particular provision of the RTI Act, would lead

 to    anomalous       and    absurd   results.   In  its

 substance, the plea of PSC is that the definition

 of the term " information" in section 2 of the

 RTI Act should be understood differently; not in

 relation to the interpretation or application of

 any particular provision of that Act; but while

WPC33718/10 & con.cases    -: 16 :-

 applying the provisions of that Act to the PSC.

 Fundamentally, this contention of PSC does not

 stand. As already noticed, PSC cannot but fall

 under the definition of "public authority" in the

 RTI Act. Having regard to the format of the

 definition of that term in the RTI Act, there is

 no intelligible differentia discernible in the

 context of that Act, to cull out any differential

 treatment for the PSC or information held by it

 or under its control. On the face of the clear

 provisions of the RTI Act, as they now stand,

 there is no way for judicial intervention to

 refuse access to information by or under the

 control of PSC.



9.Be that as it may, we proceed to consider the

 submissions on behalf of the PSC that the concept

 of   "information"       in   the   RTI  Act has  to be

 restricted       to   such   information   as would  be

 available in the realm of fundamental rights

 referable        to    Article     19(1)(a)     of  the

 Constitution,         having     regard  to  the   views

 expressed in Thalapalam I & II and S.N.College.

WPC33718/10 & con.cases    -: 17 :-

 Those      three      judgments and TREESA      trace the

 evolution of the concept of information, as a

 necessary concomitant of the fundamental right to

 freedom of expression as contained in Article 19

 (1)(a) of the Constitution. Eligibility to access

 information, including the entitlement to have

 information        for   the      purpose  of   meaningful

 fulfillment of the fundamental right to freedom

 of expression, is part of the core theme of those

 precedents rendered          making      reference to the

 legendary decisions of the Apex Court in State of

 Rajasthan v. Raj Narain[AIR 1975 SC 865] and

 S.P.Gupta v. Union of India[1981(Supp.)SCC 87].

 Those precedents do not, in any manner, abridge

 the ever expanding horizons of the fundamental

 right to freedom of expression as enshrined in

 Article 19(1)(a). Nor do those judgments act as

 precedents        for    any      proposition   that   the

 legislatures have to restrict the concept of

 "information"         for  the     purpose  of   providing

 access, with the aid of a statutory instrument,

 in the form of the RTI Act. All that has been

 said    in     those    judgments     is  that  the  ever

WPC33718/10 & con.cases     -: 18 :-

 available fundamental right to information as

 part of the fundamental right to freedom of

 speech     and       expression     has found   statutory

 recognition        in  the    form   of  RTI  Act,  as  a

 successor to the Freedom of Information Act,

 2002. Those decisions are not precedents laying

 down any definition for the term "information"

 for the purpose of the RTI Act.



10.To make a statute, including by laying down a

 statutory definition, even artificial, for any

 particular term used in that statue, is the

 exclusive function of the legislature. If it does

 so, that cannot be abridged by any situational or

 explanatory reference made to the constitutional

 provisions, in any precedents laid by courts.

 When the legislature undertakes the process of

 making a piece of statute law, it has necessarily

 to    be    assumed      that      it is  aware  of   the

 interpretations given by the courts, at least the

 Supreme      Court    and   the     High Courts,  to  the

 different terms or concepts that become subject

 of that legislation. When the legislature makes a

WPC33718/10 & con.cases     -: 19 :-

 statute,      including      by    providing  a   specific

 definition for a term; may be, even artificial,

 deviating from the common and accepted meaning of

 that particular term; it has to be taken that the

 legislature       has    consciously,    deliberately and

 after    due     consideration,      put  that  provision,

 including the definition. Judicial determination

 can     thereafter        be     only   as   regards  the

 constitutionality of that provision.



11.In the absence of any way to challenge validity

 of   the     provisions      of    the  RTI  Act,  it  is

 impermissible for the PSC to contend that in the

 application of that Act to it, there has to be a

 restrictive           understanding     of    the    term

 "information",         that   too,   ignoring  the   clear

 statutory       provision      defining   the  term;  the

 legislature clearly stating that it means what it

 stated       as      the   definition     of   the   term

 "information" for the purpose of that Act.



12.Here,    the     law   laid     by the  Apex  Court  in

 Paritosh was one expressing the confidence in the

WPC33718/10 & con.cases    -: 20 :-

 examination systems, holding the examiners and

 the institutions conducting the examinations in a

 pedestal higher than the right of the examinee or

 any other person to access information in that

 regard. In the absence of any permission then,

 like the RTI Act, holding the field, the Apex

 Court stated its views within the format of the

 Constitution to say, without the aid of any

 statute governing the field, that the right to

 information in relation to, and disclosure of

 answer     scripts,      may      lead to   request for

 revaluation and resultant choking off the systems

 which run the examinations. For one thing, after

 Paritosh was decided in 1984, and even followed

 subsequently, evolution of the thinking process

 of    the     legislators,      academicians  and  civil

 society leaders and organizers had apparently

 pushed forward the larger salutary requirement

 that transparency has to outweigh all demands for

 secrecy, except of course, in relation to areas

 of   national        and other     such interests  which

 require continued secrecy and exemption from any

 law     providing      access     to  information.  This

WPC33718/10 & con.cases    -: 21 :-

 evolution        of   the    People's    thinking  found

 acceptance with the Legislature. This is how the

 RTI   Act     came    into   being,   making  a specific

 provision in the form of Section 8 granting

 exemptions from the provisions of the RTI Act.

 We, therefore, uphold the views in TREESA and

 agree with the Division Bench and the single

 Judge of the Calcutta High Court in Pritam Rooj

 pointing out the evolution of the society leading

 to   the    RTI     Act  and    the  requirement of the

 Universities to fall in line with the provisions

 contained in that Act. The constitutional values

 have to be identified and effectuated as "We, the

 People of India" marches. The concepts which had

 held field, even for fairly long, have later

 dwinkled with the exploring minds of the Indian

 people.      As     noted  by     Krishna  Iyer, J.   in

 Authorised Officer v. S.Naganatha Ayyar[(1979) 3

 SCC 466], though the Judges are constitutional

 invigilators and statutory interpretors, they are

 also responsive and responsible to Part IV of the

 Constitution. The Judges have, with the passage

 of time, contributed to the process of evolution

WPC33718/10 & con.cases    -: 22 :-

 of the constitutional law to ultimately lead the

 society to affirmatively stand by the equality

 doctrine which is a seminal principle underlying

 the Constitution. To indicate an example of the

 process        of     evolution     of    thinking  in

 Constitutional law, we may indicate the growth of

 law from A.K.Gopalan v. State of Madras [AIR 1950

 SC 27], through Maneka Gandhi v. Union of India

 [(1978) 1 SCC 248] and Kehar Singh v. Union of

 India[(1989)1 SCC 204] and now State of West

 Bengal v. Committee for Protection of Democratic

 Rights[(2010)3        SCC 571];    showing a  graphical

 expansion of the concept of right to life and

 personal liberty. The progression of the society

 is reflected also by the growth of statute law

 and     judicial      precedents    which  reflect the

 recognition        of  the     priceless gems   in the

 Constitution; the fundamental rights, Directive

 Principles of State Policy and other provisions

 which reflect the aspirations of the Nation. They

 are the constitutional values, which will run the

 national mechanism in terms of the Constitution.

 It is within the power of the Legislature to

WPC33718/10 & con.cases    -: 23 :-

 bring such legislations as are in conformity with

 the Constitution. Permissiveness in terms of the

 Constitution        may  be     one matter. But, more

 importantly, the People are entitled to have the

 legislators to think and bring in laws as may be

 necessary to effectuate the aspirations of the

 people referable to the Directive Principles of

 State Policy. May be, a citizen may not have a

 right to a judicial order seeking enforcement of

 any provision in Part IV of the Constitution.

 But, that does not provide answer for legislative

 failure to give effect to the aspirations of the

 People in terms of Part IV of the Constitution.

 It is also the law that the legislatures which

 are the constitutional authorities to make the

 enactments can change the course of the settled

 positions        of    law     except  in  exceptional

 circumstances and subject to such restrictions as

 have been judicially recognised. Therefore, the

 law laid in Paritosh is not persuasive of any

 proposition that the provisions of the RTI Act

 have to be interpreted in terms of the rights of

 citizens, particularly, the examinees, as laid

WPC33718/10 & con.cases     -: 24 :-

 down in that case. The views expressed in that

 regard in TREESA and of the learned single Judge

 and Division Bench of the Calcutta High Court in

 Pritam Rooj are apposite.



13.For the foregoing reasons, the argument extended

 by the PSC that the concept of "information" for

 the purpose of the RTI Act has to be restricted

 to   such     information      as    may fall within the

 concept of fundamental right to information as

 part of the fundamental right to freedom of

 speech and expression referable to Article 19 (1)

 (a),    is    unsustainable        in law and  is  hereby

 repelled.



14.Now, on to the plea of the PSC that it holds a

 fiduciary status. Three issues arise in this

 context. Firstly, the PSC claims that there is a

 fiduciary relationship between it and those being

 subjected      to     examination    for the  purpose of

 selection to public service. Secondly, it claims

 that there is a fiduciary relationship between it

 and the examiners and as a consequence, it is

WPC33718/10 & con.cases    -: 25 :-

 eligible to claim protection from disclosure,

 except     with      the  sanction    of  the  competent

 authority,       as   regards     the  identity  of the

 examiners       as    also   the   materials  that  were

 subjected to the examination. Thirdly, rather,

 most importantly, it contends that the PSC holds

 a larger fiduciary public interest relationship

 with the society at large in relation to the

 maintenance        of  purity,    transparency  and  the

 credibility of the procedure of selection to

 public     service      and     therefore  materials  in

 relation to such selection procedures cannot be

 subjected to access as if they were information

 that would fall within the trappings of the RTI

 Act. We may hasten to add that the learned

 counsel for the PSC, in the course of his erudite

 submissions, made a clear distinction between

 information relatable to the PSC as regards its

 governance         and    those     relatable   to   the

 examinations conducted by it. He said that in

 matters relating to governance, there may not be

 any privilege or protection that the PSC could

 claim; but that, matters relating to examination

WPC33718/10 & con.cases    -: 26 :-

 deserve to be taken out of the purview of the RTI

 Act.



15.In Centre of Earth Science Studies v. Anson

 Sebastian[2010 (2) KLT           233], the Division Bench

 of this Court held that S.8(1)(e) deals with

 information available with the person in his

 fiduciary        relationship      with   another;  that

 information        under  this    head  is  nothing  but

 information        in   trust,    which,  but   for  the

 relationship would not have been conveyed or

 known to the person concerned and that this

 applies to the relationship that exists between a

 patient and a Doctor, a lawyer and a client etc.

 The term "fiduciary relationship" is not defined

 in the RTI Act. The learned single Judge, in

 TREESA, therefore         rightly    held   that in  the

 absence of any statutory definition, the general

 accepted legal connotation of that term could be

 adopted for deciding the issue. Reliance placed

 in    TREESA       on   the   definition   of "fiduciary

 relationship"         as  stated     in    Black's   Law

 Dictionary, seventh          edition,    in Corpus Juris

WPC33718/10 & con.cases    -: 27 :-

 Secundum, the Dictionary of Law by L.B. Curzon,

 Stroud's Judicial Dictionary and the decision of

 this Court in Sunitha v. Ramesh[2010 (3) KLT 501]

 and the decisions in Secretary General, Supreme

 Court of India(supra), including the references

 made     therein       to  different    precedents   and

 commentaries,         are   contextually    apposite and

 applicable to the interpretation of the term

 "fiduciary relationship" in section 8 (1)(e) of

 the RTI Act.



16.What, if any, is the fiduciary relationship of

 the PSC qua the examinees? Performance          audit of

 constitutional institutions would only strengthen

 the     confidence      of    the   citizenry  in   such

 institutions.         The  PSC     is a   constitutional

 institution. To stand above board, is one of its

 own prime requirements. There is nothing that

 should deter disclosure of the contents of the

 materials that the examinees provide as part of

 their performance in the competition for being

 selected to public service. The confidence that

 may    be     reposed    by      the examinees  in   the

WPC33718/10 & con.cases     -: 28 :-

 institution of the PSC does not inspire the

 acceptability of a fiduciary relationship that

 should kindle the exclusion of information in

 relation      to    the  evaluation    or other details

 relating to the examination. Once the evaluation

 is over and results are declared, no more secrecy

 is called for. Dissemination of such information

 would only add to the credibility of the PSC, in

 the constitutional conspectus in which it is

 placed.     A particular examinee would therefore be

 entitled to access to information in relation to

 that person's answer scripts. As regards others,

 information in relation to answer scripts may

 fall within the pale of "third party information"

 in terms of section 11 of the RTI Act. This only

 means that such information cannot be accessed

 except      in      conformity     with  the  provisions

 contained in section 11. It does not, in any

 manner, provide for any immunity from access.



17.We shall now examine the next contention of PSC

 that there is a fiduciary relationship between it

 and the examiners and as a consequence, it is

WPC33718/10 & con.cases    -: 29 :-

 eligible to claim protection from disclosure,

 except     with      the  sanction    of  the  competent

 authority,       as   regards     the  identity of  the

 examiners       as    also   the   materials  that were

 subjected to the examination. We have already

 approved TREESA and the different precedents and

 commentaries relied on therein as regards the

 concept of fiduciary relationship. We are in full

 agreement with the law laid by the Division Bench

 of this Court in Centre of Earth Science Studies

 (supra), that S.8(1)(e) deals with information

 available      with    the   person   in  his  fiduciary

 relationship with another; that information under

 this head is nothing but information in trust,

 which, but for the relationship would not have

 been conveyed or known to the person concerned.

 What is it that the PSC holds in trust for the

 examiners? Nothing. At the best, it could be

 pointed out that the identity of the examiners

 has to be insulated from            public gaze,  having

 regard to issues relatable to vulnerability and

 exposure to corruption if the identities of the

 examiners are disclosed in advance. But, at any

WPC33718/10 & con.cases    -: 30 :-

 rate, such issues would go to oblivion after the

 conclusion       of   the  evaluation    of  the   answer

 scripts     and     the  publication    of  the  results.

 Therefore, it would not be in public interest to

 hold that there could be a continued secrecy even

 as regards the identity of the examiners. Access

 to such information, including as to the identity

 of the examiners,           after the examination and

 evaluation processes are over, cannot be shied

 off under any law or avowed principle of privacy.



18.Proceeding to the next contention of the PSC

 that it holds a larger fiduciary public interest

 relationship to the society at large in relation

 to the maintenance of purity, transparency and

 the credibility of the procedure of selection to

 public     service      and     therefore  materials   in

 relation to such selection procedures should not

 be    subjected       to  access     as  if   they   were

 information that would fall within the trappings

 of    the     RTI     Act,   it   needs   to  be   stated

 emphatically        that  purity    and  transparency  of

 every public establishment is ensured to the

WPC33718/10 & con.cases    -: 31 :-

 satisfaction of the citizenry only by providing

 access to materials as would instil confidence.

 The RTI Act is a unique legislation. A laudable

 object it proceeds to achieve is empowerment of

 the citizenry with information in relation to

 matters of governance and also as regards all

 matters which may be relevant as information in

 terms of the RTI Act. This process of access is

 statutorily provided by the legislature after

 making      clear     and    specific    exemptions and

 restrictions regarding information which it, in

 its   wisdom,       decided   not   to disseminate. The

 reference made to the Official Secrets Act and

 the provision that the RTI Act applies with an

 overriding        effect  on      other laws   makes it

 explicitly clear that the legislative intention

 is that no principle of secrecy other than which

 is recognized specifically in the RTI Act is

 taken     up     as   a  shield     against  access and

 dessimination         of     information     by   public

 authorities in terms of the RTI Act. Transparency

 will only add to the confidence of the people

 regarding the purity of the conduct of public

WPC33718/10 & con.cases     -: 32 :-

 authorities.        The  confidence     that  the  public

 repose on the PSC would only be augmented by the

 disclosure of information. We do not find any

 reason     why       the  PSC      could  say  that   the

 confidentiality in re it and the public at large

 would,     in     any   manner,     be  affected by   the

 disclosure        of    information     in  relation   to

 examinations          and   materials     in   connection

 therewith. This argument also therefore fails.



19.Barring the eligibility of any candidate who

 would be eligible to notice and hearing prior to

 the disclosure of any third party information in

 terms of the RTI Act, we do not find any legal

 infirmity in TREESA. Except to that extent, the

 contrary view in UNICAL does not lay down the

 correct position of law. It is so declared.



20.An incidental issue also needs to be addressed.

 In exercise of authority             under the   relevant

 constitutional and statutory provisions, the PSC

 has laid down for         itself,      rules  relating to

 destruction of its records. Having regard to the

WPC33718/10 & con.cases    -: 33 :-

 existence of the power to make such rules            and

 because those rules cannot be treated as contrary

 to the provisions of the RTI Act and the objects

 sought to be achieved thereby, the PSC cannot be

 compelled to disclose information which it would

 have destroyed in accordance with the provisions

 of the rules enabling destruction of records.

 Therefore, there cannot also be any penalty for

 nondisclosure         of information      relating    to

 destroyed       records,     provided   they  have been

 destroyed in accordance            with    the     rules

 providing      and enabling destruction of records by

 PSC.



21.One of the issues that arise for consideration

 is the plea of the PSC that it having made rules

 for issuance of         copies     and  dissemination of

 information to candidates; it ought not to be

 compelled to issue such information, also under

 the provisions of the RTI Act.            This argument

 appears to be quite appealing           because   public

 institutions like PSC meet their expenses from

 public funds. Necessarily,            it  has to be the

WPC33718/10 & con.cases    -: 34 :-

 endeavour       of    all   concerned to    ensure that

 expenditure from such funds is confined to actual

 requirements.         At the same time, the mode and

 provision for access to information under the

 provisions of the rules made by the PSC, as also,

 the cost factor,         if any,     involved,  may  be

 relevant considerations to ultimately conclude as

 to whether there could be any exclusion of access

 to such information under the provisions of the

 RTI Act and the rules framed thereunder, on the

 premise       that      alternate,     efficacious  and

 cost-friendly modes of access to information are

 otherwise provided for by the statutory rules and

 other provisions that govern the working of the

 public authority from which, information could be

 sought under the RTI Act. But, as the law now

 stands,       there is no scope for any judicial

 recognition of         such    a   plea and a favourable

 decision on that issue through a judicial order.

 This is because Section 22           of   the  RTI  Act

 provides that the provisions of that Act shall

 have effect notwithstanding anything inconsistent

 therewith contained in the Official Secrets Act,

WPC33718/10 & con.cases    -: 35 :-

 1923 (19 of 1923), and any other law for the time

 being in force or in any instrument having effect

 by virtue of any law other than that Act. Such

 statutory provision          having been made by the

 legislature, within its competence, it cannot be

 watered down or modified except by recourse to

 legislative procedures. We therefore do not find

 way to accept the contention of the PSC in this

 regard.



22.Another plea of PSC is nothing but a managerial

 issue.     It is      pointed out that the PSC has to

 incur the         huge expenses     and administrative

 difficulties, including the deployment of staff

 exclusively to deal with such requests and this

 would result in undue hardship and clogging of

 its administrative setup. Once a piece of law is

 in place, inconvenience is no excuse to exclude

 adherence to it. The bounden has to obey and

 abide by it.           This plea of PSC also does not

 commend acceptance.

WPC33718/10 & con.cases    -: 36 :-

 In the result, the decisions impugned by the PSC

 are upheld except to the extent they relate to

 information destroyed in terms of the provisions

 of the rules enabling destruction of records by

 PSC. The impugned orders and the orders sought to

 be enforced, through a couple of writ petitions

 by persons who have sought information, would

 stand regulated by what is stated herein. Further

 enforcement        of  those      orders,  including   by

 invoking the penal provisions shall be only in

 strict conformity with what is stated herein. In

 view       of     the  fact      that  the  question  of

 applicability of the RTI Act to PSC was being

 considered in this bunch            of  matters,   orders

 imposing penalty, if any, are set aside and the

 PSC will have the statutory time, to comply with

 the directions of the SIC, running from today.

 The writ petitions are ordered accordingly. No

 costs.

                                         Sd/-
                             Thottathil B.Radhakrishnan,
                                          Judge.

                                         Sd/-
                                     P.S.Gopinathan,
 Sha/0303                                 Judge.
                  -true copy-

PIL ABOUT RAW MARKS AND ANSWERSHEET: PIL/98/2012 of HIGH COURT OF BOMBAY AT BOMBAY

PIL ABOUT RAW MARKS AND ANSWERSHEET: PIL/98/2012 of HIGH COURT OF BOMBAY AT BOMBAY

IN THE HIGH COURT OF JUDICATURE OF BOMBAY AT BOMBAY

[RULE 4(e) OF THE BOMBAY HIGH COURT PUBLIC INTEREST LITIGATION RULES, 2010]

PIL Petition No. 98                        of 2012

IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING DIRECTION AGAINST THE UNION PUBLIC SERVICE COMMISSION TO PROVIDE PHOTOCOPIES OF THE ANSWER BOOKS OF THE EXAMINEES ALONGWITH THE RAW AND MODERATED MARKS OF ALL CANDIDATES FOR THE CIVIL SERVICES EXAMINATION – 2011.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING TO QUASH THE RECORD RETENTION SCHEDULE OF THE UNION PUBLIC SERVICE COMMISSION BY WHICH THE UPSC WILL DISTROY THE EXAMINEES’ ANSWER BOOKS AFTER 45 DAYS OF THE DISPLAY OF THE MARKS ON ITS WEBSITE.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING DIRECTION AGAINST THE UNION PUBLIC SERVICE COMMISSION TO RETAIN ANSWER SHEETS OF ALL THE EXAMINEES UPTOONE YEAR.

1.       Dr. PrachiDilipPampattiwar

          Age: Adult, Occ. Doctor

R/o. Darpan Co-operative Housing Society,

Flat No: 201, Wing A,Budhaji Nagar, Kalwa,

Dist. Thane – 400605.

          Mobile Number: 

          PAN: 

          Email: 

2.       Dr. PrashantRamesh Chakkarwar

          Age: Adult, Occ. Psychiatrist

R/o. Darpan Co-operative Housing Society,

Flat No: 201, Wing A,Budhaji Nagar, Kalwa,

Dist. Thane – 400605.

          Mobile Number: 

          PAN:

          Email: 

…Petitioners

          Versus

1.       Union Public Service Commission

Dholpur House,Shahjahan Road,

New Delhi – 110069.

2.       Union of India,

Through Ministry of Personnel

Public Grievances and Pension

Department of Personnel and Training

Through Secretary, New Delhi

…Respondents

PUBLIC INTEREST LITIGATION PETITION

TO,

THE HON’BLE CHIEF JUSTICE OF THE HIGH COURT OF JUDICATURE AT BOMBAY AND HIS COMPANION JUDGES

THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED

MOST RESPECTFULLY SHOWETH:

A.      Particulars of the cases/order against which the Petition is made:

1.       The petitioners are filing this writ petition in public interest challenging the Constitutional and Legal validity of refusal of Respondent No.1 to provide to the Examinees of the Civil Services Examination – 2011 the information asked by them regarding the Civil Service Examination. Refusal to provide information violates the Legal as well as Constitutional Right of the Examinees under Right to Information Act, 2005 and Article 19(1) of the Constitution of India.

          The Petitioners seek Direction to the Respondents for providing photo copies of the answer books of the Applicants as asked by various Applicants by their applications under Right to Information Act, 2005 in respect of Civil Services Main Examination – 2011 immediately.

          The Petitioners also seek direction against the respondents for providing Raw and Scaled marks of all candidates of Civil Services Main Examination – 2011 asked by various candidates by their applications under Right to Information Act – 2005.

          The Petitioners also seekto quash the Record Retention Schedule of the Respondent No.1 by which the Respondent seeks to destroy in destroying the documents relating to Civil Services Examination 2011 within six months. The retention period should be aligned with the time duration given by Law for challenging the violation of their legal rights i.e. one year.

          The Petitioners also seek the direction against the Respondent No.1 for its logic of countingthe retention period which should be taken from the day when result is declared, not from the day when exam is over. The logic for counting of the retention period is arbitrary and is a clear violation of Article 14 of the Constitution of India.

B.      Particulars of the Petitioners

1.       The Petitioners herein are Public Spirited Individuals fighting for the Rights of Students who appear for or have appeared for in the Civil Services Main Examination – 2011 conducted by the Respondent No.1.The Petitioner No.1 is a Doctor by profession working in the Rajiv Gandhi Medical College, Kalwa, Thane and the Petitioner No.2 is a Doctor by profession working in Sion Hospital as a Psychiatrist. The Petitioners submit that they have no personal interest in the issues agitated in this Writ Petition and any reliefs if granted are going to be beneficial to the lakhs of candidates who appear for the Civil Services Examination and will also affect the interest of citizens of this Country as the reliefs if granted will bring transparency in the Selection of the topmost bureaucrats of the Country.

2.       The Petitioner No.1 states that she is not involved in any other civil, revenue or criminal litigation in any capacity before any Court or Tribunal.

3.       The Petitioner No.2 states that he is party to following pending litigation:

     i.        Chittaranjan Kumar and Others v. UPSC and Others, WP (C) 3973 OF 2011 pending in High Court of Delhi relating to disclosure of Raw Marks in the Civil Services Examination – 2008.

   ii.       

4.       The Respondent No.1, Union PublicService Commission, conducts Civil Services Examination every year for selection of candidates for appointment on various posts for Civil Services in India. The Civil Services Examination is the most coveted examination in the Country as the topmost bureaucrats of India are selected through this examination. The Respondent No.2 is the Ministry of PersonnelPublic Grievances and Pension which directly controls the functioning of the Respondent No.1. Both being the instrumentalities of state are amenable to the Writ Jurisdiction of this Hon’ble Court.

C.      Declaration and undertaking of the Petitioners

1.       That the present petition is being filed by way of public interest litigation and the petitioners do not have any personal interest in the matter. The petition is being filed in the interest of Candidates who appeared for the Civil Services Examination – 2011. Annexed herewith and marked as Annexure “1” is an affidavit in this regard in terms of Rule 7(a) of the Bombay High Court Public Interest Litigation Rules, 2010.

2.       That the entire litigation costs, including the advocate’s fee and other charges are being borne by the petitioners.

3.       That a thorough research has been conducted in the matter raised through the Petition.

4.       That to the best of the Petitioners’ knowledge and research, the issue raised was not dealt with or decided and that a similar or identical petition was not filed earlier by the Petitioners.

5.       That the petitioners have understood that in the course of hearing of this Petition the Court may require any security to be furnished towards costs or any other charges and the Petitioners shall have to comply with such requirements. Annexed herewith and marked as Annexure “2” is an affidavit in this regard in terms of Rule 7(b) of the Bombay High Court Public Interest Litigation Rules, 2010.

D.      Fact constituting the Cause

1.       The Petitioners state that Civil Services Examination is conducted in three stages, i) Preliminary Examination, ii) Mains Examination and iii) Interview. Every year lakhs of candidates appear for this examination which ends in selection of only a few successful candidates. The nature and status of examination sees all these candidates prepare for years putting a financial burden on themselves and the families. Every unsuccessful candidate is causing monitory loss to their families along with mental agony of trial and failure.

          Various unsuccessful candidates have sought,under the Right to Information Act, 2005, the photo copies of their answer books for Civil Services Mains Examinations – 2011, conducted by the Respondent No.1 suspecting irregularity and lapses in evaluation process, amongst other grounds. It is the experience of the Petitioner that none of the candidates seeking for copies of answer books have ever got a copy.

          It is the experience of the Petitioner from the replies of the Respondent No.1 to various Right to Information applications of various candidates that the Respondent No.1 used to refuse to give any information sought under the applications claiming exemption under Sections 8(1)(e) and 8(1)(g) quoting the Central Information Commission’s decision in Rakesh Kumar Singh v. Harish Chander, Complaint No.CIC/WB/C2006/00223. Annexed herewith and marked as Exhibit “A”is the copy of one of the replies of the Respondent No.1 to the Right to Information application of one Mr. Ashish Gupta dated 4.05.2010.

2.       The Petitioners state that it was an unfortunate incident for the candidates of the Civil Services Examinations when in Rakesh Kumar Singh v.Harish Chander, the Central Information Commission held that the examining body had rightly refused information under Sec.8(1)(e) and (g) of the Right to Information Act, 2005, however, after the CBSEv.AdityaBandopadhyay, (2011) 8 SCC 497the Central Information Commission’s decision stands overruled. Annexed herewith and marked asExhibit “B” is the photocopy of the judgment of the Central Information Commission dated 23.04.2007 Rakesh Kumar Singh v. Harish Chander, Complaint No. CIC/WB/C2006/00223.

3.       The Petitioner states that, in view ofHon’ble Supreme Court’s judgment dated 9.08.2011 in Central Board of Secondary Education v.AdityaBandopadhyay, (2011) 8 SCC 497, all examining bodies including Public Service Commissionshave to provide under Right to Information Act,2005, the Certified Copies of evaluated Answer Books to candidates. Annexed herewith and marked as Exhibit “C” is the copy of the Hon’ble Supreme Court’s judgment in CBSE v. AdityaBandopadhyay, (2011) 8 SCC 497.

4.       As the Respondent No.1 used to refuse information claiming exemption under Sec.8(1)(e) of the Right to Information Act, 2005, the petitioner is reproducing the exemption as follows:

“(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;”

          Regarding the exemption claimed by the Respondent No.1 under Section 8(1)(e), the Hon’ble Supreme Court has observed inAdityaBandopadhyay’scasein Paragraph 27 that:

          “…an examining body does not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books.”

5.       As the Respondent No.1 further used to refuse information claiming exemption under Sec.8(1)(g) of the Right to Information Act, 2005 the Petitioner is reproducing Sec.8(1)(g) as follows:

“(g) information, the disclosure of which would endanger the life or physicalsafety of any person or identify the source of information or assistance given inconfidence for law enforcement or security purposes;”

          Regarding the exemption claimed by the Respondent No.1 under Section 8(1)(g) the Supreme Court has observed inAdityaBandopadhyay’scase that:

          “…Those portions of the answer-books which contain information regarding the examiners/coordinators/ scrutinisers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer-books, under Section 10 of the RTI Act.”

6.       Regarding the applicability of the AdityaBandopadhyay’sdecision to the Respondent No.1, the Petitioners state that, Assam Public Service Commission (APSC) was one of the party to CBSE v. AdityaBandopadhyay as APSC’s Civil Application Nos.6465-6468 of 2011 were attached to Civil Application No.6454 OF 201 filed under CBSE v. AdityaBandopadhyay.

          Since APSC was a party to the decision, the judgment inAdityaBandopadhyay’s case applied to APSC. APSC and Respondent No.1 are both constitutional bodies both dealing with conducting examination for selecting candidates for Civil Services, the same principles should be applicable to Respondent No.1, mutatis mutandis. Further the fact that the Hon’ble Supreme Court specifically makes all the observations using the term “examining bodies” itself makes it clear that since the Respondent No.1 is an examining body, the decision in AdityaBandopadhyay’s case are applicable to Respondent No.1.

7.       The Petitioner states that, after the AdityaBandopadhyay’s judgment, the Respondent No.1 has started refusing the Answer Books claiming exemption under Section 8(1)(d). Annexed herewith and marked as Exhibit “D”are the copies of the Applications under the Right to Information Act, 2005 of various candidates and the replies of the Respondent No.1 claiming Section 8(1)(d) as exemption for not giving the information.

8.       It is pertinent here to note that,

a.    The Respondent No.1 started refusing the answer books and other information asked by the candidates under Right to Information Act, 2005, by taking defense of Section 8(1)(e) and 8(1)(g) of the Right to Information Act, 2005.

b.    After the Central Information Commission’s judgment in Rakesh Kumar Singhv. Harish Chander the Respondent No.1 started taking defense of the judgment of the CIC in Rakesh Kumar Singh’s case.

c.    After the AdityaBandopadhyay’s judgment the Respondent has started taking the defense of Section 8(1)(d).

          This conduct of Respondent No.1 shows its mala fides as it is following avoidance tactics and trying to find new excuses every time to avoid giving information.

9.       The Petitioner here specifically quotes the contention of the CBSE inAdityaBandopadhyay’s Judgment which was also accepted by the Supreme Court to be applicable to all examining bodies. The Supreme Court observed in paragraph No.14 as follows:

“(14) The examining bodies contend that the evaluated answer-books are exempted from disclosure under Section 8(1)(e) of the RTI Act, as they are ‘information’ held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub-section (1) of Section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under Section 8(1)(e) of the RTI Act.”

          On this the Hon’ble Supreme Court has specifically observed in Paragraph No.27 that:

          “(27) We, therefore, hold that an examining body does not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.”

          After the CBSE’s contentions in the AdityaBandopadhyay’s case that evaluated answer-books will not fall under any other exemption than Section 8(1)(e), the Supreme Court has observed that the Examining bodies have no other exemption under the Section 8 other than Section 8(1)(e).

10.     The Petitioner states that the Respondent No.1 also refused and has kept on refusing information under Sec.8(1) regarding the Raw and Scaled marks of the candidates.

          The Petitioner states that, the Central Information Commission in Appeal No. CIC/MA/A/2006/00793 had specifically directed the Respondent No.1 to provide the Raw and Scaled marks of the candidates who have sought those under Right to Information applications. Annexed herewith and marked as Exhibit “E” is the copy of the Central Information Commission’s judgment in Appeal No. CIC/MA/A/2006/00793.

11.     The Petitioner states that Respondent No.1 had challenged the judgment of CIC in the Hon’ble Delhi High Court by WP (C) No.17583 of 2006. The Hon’ble Delhi High Court upheld the CIC’s judgment with some modifications. Annexed herewith and marked as Exhibit “F” is the copy of the judgment of the Hon’ble Single Judge of the Hon’ble Delhi High Court’s in WP (C) No.17583 of 2006.

          The Respondent No.1 challenged the judgment in WP (C) No.17582 of 2006 in the Hon’ble Delhi High Court by LPA No. 313 of 2007. The Division Bench of the Delhi High Court was pleased to dismiss the Letter Patent Appeal thereby upholding the judgments of the CIC and Single Judge of the Delhi High Court. Annexed herewith and marked as Exhibit “G” is the copy of the judgment of the Division Bench of the Delhi High Court in LPA No. 313 of 2007.

12.     The Respondent No.1 further challenged the judgment of the Division Bench of the Delhi High Court in the Hon’ble Supreme Court by SLP No.23250 of 2008. While the SLP was pending in the Hon’ble Supreme Court the Respondent No.1 refused the information to various candidates on the ground that the issue is pending before the Supreme Court, the information cannot be disclosed. Annexed herewith and marked as Exhibit “H” are the two replies given by the Respondent No.1 to candidates Aashish Gupta and Chittaranjan Kumar while the SLP 23250 of 2008 was pending before the Supreme Court.

          Further it is observed in CIC/WB/A/2007/00694, the CIC has by specifically mentioning Raw Marks/Moderated and Scaled marks, separately that those cannot be given since SLP 23250 of 2008 is under consideration by the Supreme Court. Annexed herewith and marked as Exhibit “I” is the copy of the CIC’s order in CIC/WB/A/2007/00694.

          It is pertinent to note that the Hon’ble Supreme Court dismissed the SLP observing that since the Commission has completely changed the pattern of its examination for the year 2011, it will not adjudicate on this matter. Annexed herewith and marked as Exhibit “J” is the copy of the judgment of the Hon’ble Supreme Court dismissing the SLP of the Respondent No.1.

13.     After dismissal of the SLP by the Hon’ble Supreme Court, many candidates approached the Respondent No.1 seeking Raw and Scaled marks. Since the CPIO refused to give the marks flaunting the previous decisions of the CIC, Delhi High Court and Hon’ble Supreme Court, the candidates filed and Appeal No. 08/RTI Appeal/JS(RD)/UPSC/2011. The appellate authority directed the CPIO of the Respondent No.1 to reconsider the matter and provide the information to the appellants. Annexed herewith and marked asExhibit “K” is the copy of the Appeal No. 08/RTI Appeal/JS(RD)/UPSC/2011.

          After the dismissal of the SLP by the Hon’ble Supreme Court, the Petitioner No.2 also applied to the Respondent No.1 for Raw Marks of all candidates, however it was refused by the Respondent No.1. On which, the Petitioner No.2 filed an appeal to the Central Information Commission by Appeal No. CIC/WB/A/2010/000332 & 523 SM. The Respondent No.1 filed an Affidavit in that appeal, the Petitioners hereby quote the contention of the Respondent No.1 as follows:

“Raw Marks are unprocessed/unanalyzed data, which undergo the following operations/treatment:

·         Scrutiny with regard to errors (totaling, portion remaining unvalued, extra answers etc.) and correction thereof.

·         Scrutiny by other examiner(s) and requisite adjustments

·         Moderation exercise to bring uniformity in evaluation.

While passing through the above irreversible processes, there marks get modified and are masked/overwritten at the end of each process and ultimately the marks awarded (or final marks) only remain, which only are maintained as per the prescribed Record Retention Schedule.”

          Annexed herewith and marked as Exhibit “L” is the copy of the Affidavit filed by the Respondent No.1 before the CIC in Appeal No. CIC/WB/A/2010/000332.

          This stand of Respondent No.1 is also contrary to their stand taken in 2008 in Appeal No. CIC/WB/A/2008/00192 where the Respondent No.1 has stated that the English answer sheet contained answers to five questions marked in red and totaled separately and moderated marks were marked in blue ink and stated in totality. Annexed herewith and marked as Exhibit “M” is the copy of the Order in Appeal No.CIC/WB/A/2008/00192.

          It is pertinent to note that the Respondent No.1 has been taking different stands at different time which nothing but evasive and avoidance tactics. However, after the Hon’ble Supreme Court dismissed Respondent No.1’s SLP 23250 of 2008 by its order dated 18.11.2010, the judgments of CIC and Delhi High Court stand upheld and therefore, the Respondent No.1 is duty bound to provide the Raw and scaled marks of all candidates for Civil Services Examination – 2011 asasked by candidates by their RTI applications.

14.     The Petitioner believes that the Respondent No.1 is trying so hard to conceal the information regarding the Civil Services Examination – 2011 to conceal the frauds and dupery committed by it in the Selection Process.

          It is pertinent to mention that, this is very serious issue as it deals with careers of lakhs of intellectual youths of India, which gives their most productive age from 21-35of their life preparing for this examination. Hence its outcome has profound effect on Life and Liberty of candidate.

          The Petitioner further states that the Civil Services Examination is most coveted examination in India as the topmost of bureaucrats of India are selected through this examination.

15.     The Petitioner further states the Supreme Court’s observations in inICAIv. Shaunak H. Satya, 2011 (8) SCC 781 as follows:

“Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only trough transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act, as the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defense. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon”.

16.     The Petitioner states that the Respondent No.1 has a Record Retention Schedule by which the Respondent retains the records for a certain period. Before, 31.12.2011 the Respondent had a retention schedule which allowed them to retain the answer books for 1 year from the date of examination or 60 days from the declaration of marks on Respondent No.1’s website.

          The Petitioner states that, the Respondent No.1 changed the Record Retention Schedule thereby making a provision to retain the answer books for 6 months from the date of examination or 45 days from the date of declaration of marks on the Respondent’s website, whichever is later. Annexed herewith and marked as Exhibit “N” is the copy of the Old and New Record Retention Schedule of the Respondent No.1.

          The Petitioner states that this is Respondent No.1’s new device to conceal information as, when a candidate applies under the Right to Information Act, 2005 for information the information will not be given to him within 45 days and the record of the candidates will be destroyed.

17.     The Delhi High Court in WP (C) No. 2467 of 2006 has observed that it is illogical to calculate one year’s time from destruction of Answer Books from the date on which a person appears in the Written Examination. Grievances, so far as the marking is concerned, would arise only when the Results are declared. Record Retention Schedule, in as much as it stipulates that Records shall be kept for one year, can only be fairly and logically interpreted to commence from the date when the Results are declared. Annexed herewith and marked as Exhibit “O” is the copy of the Hon’ble Delhi High Court’s judgment in WP (C) No.2467 of 2006.

18.     The Petitioners state that the Civil Services Examination was conducted with the following schedule.

Date	Event
12.06.2011	Preliminary Examination in the Civil Services Examination – 2011 was conducted
17.08.2011	Result of the Preliminary examination was declared
October-November 2011	Main Examination in the Civil Services Examination – 2011 was conducted
1.03.2012	Result of the Main examination was declared
16.03.2012	Respondent No.1 issued an Interview Call Letters to Candidates clearing Main Examination
March-April 2012	Candidates appeared for Interview
4.05.2012	The Selection list was published
17.05.2012	The Mark sheets of the candidates were published on the Respondent No.1’s website

          The Petitioners state that according to the Record Retention Schedule the Respondent No.1 will destroy the candidates’ answer books after 45 days of the declaration of the marks. Since the marks were declared on 17.05.2012, the Respondent will destroy the candidate’s answer books on 2.07.2012.

E.      GROUNDS

a.    The conduct of the Respondent No.1 in refusing to disclose information regarding the Civil Services Examination – 2011 is tainted with mala fides as it is following avoidance tactics and trying to find new excuses every time to avoid giving information.

b.    The mala fide intentions of the Respondent No.1 are revealed by the fact that before the Central Information Commission’s judgment, it took the defense of Section 8(1)(e) and (g) of the Right to Information Act, 2005; after the Central Information Commission’s judgment, it took the defense of the CIC’s judgment; and after the CIC’s judgment stood overruled by the AdityaBandopadhyay’s judgment, the Respondent No.1 started taking the defense of Section 8(1)(d).

c.    The Supreme Court has specifically held that the examining bodies do not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books.

d.    Regarding the defense of Section 8(1)(g), the Supreme Court has specifically held that the portions of the answer-books which contain information regarding the examiners/coordinators/scrutinisers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer-books, under Section 10 of the RTI Act.

e.    The Respondent No.1 is also bound to disclose the Raw and Scaled marks of the candidates as the SLP No. 23250 of 2008 agitating the exemption from disclosing it was dismissed by the Hon’ble Supreme Court.

f.     Even after dismissal of the Respondent No.1’s Special Leave Petition thereby directing them to disclose Raw and Scaled marks of the candidates, the Respondent No.1 is still not providing the Raw and Scaled marks of the Candidates, let alone the Answer Books.

g.    It is pertinent to mention that UPSC is applying the method of statistical Moderation, by which it upgrade or downgrade the marks of the candidates. This statistical method require average of marks, maximum, minimum and standard deviation and to arrive at these parameters raw marks of all candidates are required. According to UPSC ,the raw marks are available only on Answersheets so they must be kept intact till they provide candidates raw and scaled/Moderated marks of all candidates under Right to Information Act,2005.

h.   The Right to Information is a legal Right which directly relates to the Fundamental Rights under Article 19(1). As early as in 1976, the Supreme Court said in the case of Raj Narain v. State of UP that people cannot speak or express themselves unless they know.

i.     Right to information is embedded in article 19, and as observed in Raj Narainv. State of UP by the Supreme Court, India is a democracy, People are the masters and therefore, the masters have a right to know how the governments, meant to serve them, are functioning.

j.     Right to Information Act 2005 provides a machinery or a process through which a citizen of India can exercise his fundamental right. Therefore, Right to Information Act does not give us any new right. It simply lays down the process on how to apply for information, where to apply, how much fees etc.

k.    As per Law, In case there is violation of any legal rights in the Civil Service examination, an applicant can challenge the violation of his legal rights in Central Administrative Tribunal or in any other Court for a period of 1 year.

l.     The Respondent No.1 has acted with mala fides by modifying the Record Retention Schedule and reducing the period of retaining the answer books of the candidates, as the candidates will lose more than 45 days in obtaining the information under the regular Right to Information procedure.

m.  The modification of the Record Retention has been done in gross violation of the Public Records Act, 1993.

n.   Once, the Respondent No.1 destroys the answer books after 45 days the candidates will not have any remedy left with them.

o.    The Delhi High Court in WP (C) No. 2467 of 2006 has observed that it is illogical to calculate one year’s time from destruction of Answer Books from the date on which a person appears in the Written Examination. Grievances, so far as the marking is concerned, would arise only when the Results are declared. Record Retention Schedule, in as much as it stipulates that Records shall be kept for one year, can only be fairly and logically interpreted to commence from the date when the Results are declared.

p.    The non-transparent, non-accountable functioning of the UPSC and the complete secrecy Regarding Civil Services Examination and recruitment process herein applying violates Article 19(1)(a) of the Constitution which guarantees the right to information, and the same being arbitrary is violative of Article 14 of the Constitution.

q.    The Respondent No.1 is making the candidates to run from pillar to post to obtain the Certified Copies of their Answersheets and Raw and Scaled/Moderated marks of all candidates to prove their case that their non-selection in Civil Services is because of the irregularities committed by UPSC in the evaluation process.

F.       Source of Information:

The Petitioners state that the information relied on in this Public Interest Litigation has been gathered by the Petitioners

1.    from various candidates who appeared for the Civil Services Examination – 2011

2.    through his own Right to Information Applications filed in the office of the Respondent No.1 UPSC, and

3.    The NGO Transparency Seekers for Accountability.

The Petitioners state that they have verified the information themselves personally and to the best of their knowledge, believe it to be correct. Annexed herewith and marked as Annexure “3” is an affidavit in this regard in terms of Rule 7(c) of the Bombay High Court Public Interest Litigation Rules, 2010.

G.      Other Declarations:

1.       The Petitioners state that they have not made any representation to the Respondent No.1 apart from the Right to Information applications made by various candidates on which they rely on for the purpose of this Public Interest Litigation.

2.       The Petitioners state that there is no delay in filing this Public Interest Litigation.

3.       The Petitioner states that have not filed any other writ, complaint, suit or claim in any manner claiming the reliefs claimed in this Public Interest Litigation in this Hon’ble court.

4.       The Petitioners crave leave of this Hon’ble Court to add to and amend this Writ Petition, whenever any new material in support of this Public Interest Litigation are found or discovered by the Petitioners.

5.       The Petitioners undertake to submit English translations of Hindi and Marathi documents if required by this Hon’ble Court.

6.       The Petitioners have paid the Court fees of Rs.500/- while filing this Public Interest Litigation.

7.       The Petitioners undertake to provide typed copies of illegible documents if any in the course of pendency of this Public Interest Litigation.

8.       The Petitioners state that the reliefs claimed in this PIL if granted will be in full and will be beneficial to the laks of Candidates appearing every year for the Civil Services Examination and also to the citizens of India as the topmost bureaucrats of India are selected through this examination.

9.       The Petitioners submit additional documents relating to the issue agitated in this Public Interest Litigation, which documents have been obtained by the Petitioner through various sources among NGO’s and Newspapers. Annexed herewith and marked at Exhibit “P” is a compilation of additional documents related to the Public Interest Litigation.

H.      Documents relied on:

As per the List of Documents annexed to this Public Interest Litigation.

I.       The Petitioner therefore Prays that

1.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the Respondents to provide Certified copies of answer books of the candidates as sought by them in their Right to Information applications under Right to Information Act, 2005 as submitted to the Central Public Information officer, UPSC regarding the Civil Services Examinations 2011.

2.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the respondents to provide the Raw and scaled/Moderated marks of all candidates of Civil Services Main Examination – 2011 as sought by the candidates by their applications under Right to Information Act,2005.

3.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the Respondent No.1 to retain the answer books of all the candidates who appeared for the Civil Services Examination-2011 till the same is provided and any incidental proceeding arising out of it are exhausted.

4.    Any other appropriate relief may be granted by which this Court is of the opinion that the interest of the candidates who appeared for the Civil Services Examination – 2011 will be protected.

J.       Interim Order prayed for

1.    Pending hearing and final disposal of this Petition, This Hon’ble Court be pleased to stay the Record Retention Schedule of the Respondent No.1 dated 31.12.2011.

2.    Pending hearing and final disposal of this Petition, this Hon’ble Court be pleased to direct the respondent to retain the answer books of all the candidates who appeared in the Civil Services Examination, 2011.

3.    Any other appropriate relief may be granted by which this Court is of the opinion that the interest of the candidates who appeared for the Civil Services Examination – 2011 will be protected.

K.      Caveat

The Petitioners state that they have received no notice of lodging a caveat by the opposite parties.

Place: Mumbai

Date:  27^th June, 2012

(Dr. PrachiDilipPampattiwar)

Petitioner No.1

(Dr. PrashantRamesh Chakkarwar)

Petitioner No.2