Curious case of UPSC & photocopies of Evaluated Answer-sheets under RTI.

For Transparency and Accountability –Curious case of UPSC & photocopies of Evaluated Answer-sheets under RTI.

Note-We have documentary evidence to support whatever has been mentioned in the following write-up.

Union Public Service Commission(UPSC) is a  constitutional body which conducts annual civil services examination(CSE) in 3stages-Preliminary,Mains and Interview.

Earlier there used to be statistical scaling in objective Pre test too, apparently to bring performance in various optional subjects at par and it is also a public fact as how UPSC fought  a prolonged and unrelenting though unsuccessfull battle  in the offices of Information commissions & court-rooms to maintain secrecy around it,irrespective of great public outcry by candidates among others.Now,Pre pattern stand changed and as 2common papers are there so scaling is no longer there in Pre.

But in the subjective MAINS examination UPSC still follows inter-examiner and inter-subject moderation,about which it has not mentioned at all in CSE notification unlike MP PSC,which employs scaling/moderation in Mains with considerable transparency.Many court cases are there related with this moderation in UPSC,which UPSC says is to bring parity in standards of evaluation. That’s all right,no one has problem with the CONCEPT of moderation or any other name one might give it BUT our concerns are related to its transparent and rule-based implementation with proper accountability and appraisal mechanisam,which is missing at the moment.Its not scientific,not formula based,instead its selective(only certain subjects and certain answersheets are moderated after being choosen by human agency),no one knows what is the range and standards of moderation(I mean whether they can modify in the range of 80-100marks or just 10-20 marks at best!!Erratic marks of top candidates even in their final attempt in few papers points otherwise),with no official appraisal of true impact of moderation based on study of MAINS marks of different subjects available in public domain which can tell whether moderation is  really successful in bringing parity in standards of evaluation,as it was supposed to bring or it is just employed for the sake of using it.Thus in a cut-throat competition for one of the most prestigious services in the country,its not the absolute performance of the candidates but the performance modified through this arbitrary and shady implementation of Moderation,is the decisive factor.This irrational behaviour on part of the system is usually accepted by otherwise entitled candidates as LUCK factor. This obscure and selective implementation of moderation (thus susceptible to any possible abuse by human agency in the absence of transparency and accountability)has to be ended .Then the resistance shown by UPSC to remove the cover around it in the name of maintaining integrity of  its secret internal functioning further raises the eye-brows.

 Coming back to the current issue that is of disclosure of photocopies of evaluated answer-sheets under the RTI ,which inturn can,for the certain extant,curtail  this arbitrary and unaccountable modification and related idiosyncrasy.

 With the path-breaking judgement of August 2011 by honourable SC in Aditya Bandopadhyay versus CBSE case,in which constitutional bodies like Assam PSC and Bihar PSCs were also a party,all over the country various movements has been launched by students and civil society to make sure that impact of this judgement is seen on the ground.Through this judgement,SC has rejected the varied contentions(including various exemptions under  Section 8 of RTI) of various exam conducting bodies which they used to deny such information in the past.

Through this landmark judgement,SC has simply expanded the definition of “information” under RTI Act and put “evaluated answersheets” under it ,thus all exam conducting bodies which normally falls under the RTI act must fall under the expanded RTI act, irrespective of the fact that they were not a party to this particular case.

Apart from this,in September 2011’s Shaunak Satya versus ICAI(Institute of Charted Accountants of India) case judgement,SC has further said that no exemption under  Section 8 of RTI can be used to deny photocopies of evaluated answersheets under RTI act,unless otherwise exempted by the Govt. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof.

Irrespective of these 2 detailed SC judgements,UPSC has once again persisted with its unyielding and conservative attitude and is still not providing any photocopy of evaluated answer sheets using one pretext or another.

It is quite astonishing to know that the apex constitutional commission has spent around Rs 120 crore on its legal cell, in last 5years,as revealed by RTI and yet it is not providing the basic information under RTI like how many supplementary sheets were used by a candidate!! The institution is not leaving any stone unturned in creating obstacles in the unorganized candidates’(many of them genuinely considers themselves victims & seek justice)quest for exercising their legal rights.

Since August 2011,when this judgement came,UPSC has used various excuses in its RTI replies to remain aloof,details of which and their counter is given at the end of this write-up.Thus ,with respect to this otherwise settled matter,UPSC is giving all sort of general and vague responses of specific queries and these are being used to deny legitimate information demanded by candidate under RTI .Infact these replies under RTI process are used as dilatory tactics in effect, as there is another aspect too  which is the fact that these answersheets,which are the  basic  evidence as far as disputes about evaluation processes are concerned,can not remain forever with their custodian,UPSC and sooner or later UPSC will be legally entitled to destroy them according to the related law/rule and thus resulting in fait-accompli.

 Not only that,in late January 2012,it has changed its record retention schedule with respect to answersheets which now, in normal case,enables it to destroy answersheets just 45 days after the display of marksheets on its website i.e. 45 days from May 17 i.e.July2,2012 for CSE 2011 exam cycle.Now,BOTH the logic and process of revision of this record retention schedule of answer sheets are also challenged before the court of law.

Till date,after more than 10months since Aditya Bandopadhyay judgment came,UPSC has not provided even a single photocopy of evaluated answersheets  under RTI and thus openly making a mockery of RTI and Indian justice system by its non-compliance and instead using the tax-payers money on its costly legal-cell just to avoid any transparency and accountability in its functioning.

Another interesting facet of the case is the confusion created by UPSC  and certain other public service commissions.Andhra Pradesh Public Service commission(APPSC),another constitutional body in its written reply to AP Information commission has said that they consulted UPSC on the matter and as UPSC told them that Aditya Bandopadhyay judgement was related to CBSE,so they need not comply.While on the other hand,apart from,Assam and Bihar PSC’s which were party to the SC case,Maharashtra  and MP public service commissions  among others has already provided photocopies of their evaluated answersheets under RTI.Infact,in Madhya Pradesh scaled/moderated marks are shown on the revealed answer sheets.Now,its baffling  to see and beyond our comprehension as why UPSC still considers itself special and demands treatment accordingly.

We do hope that SC will make clear whether,UPSC and some other PSCs which are following its position on this matter, are right in claiming exemption from SC judgement ‘s influence or not.If not,then SC should issue necessary directives  to UPSC  in this matter while taking a critical view of its conduct so far in this context including revision of its record retention schedule, which can only be changed after following a detailed 7-step procedure with National Archives of India playing a critical role in the same and also the logic of answer-sheet retention period.

We have already filed RTI with NAI in this respect and are awaiting its response ,apart from RTIs filed with certain other Public Service commissions.Morever,because  of the fact  UPSC is so keen on destroying  answersheets by revising its record retention schedule and not providing the photocopies of the same under RTI,many aggrieved candidates of CSE 2011 cycle has filed writ petitions on RTI matter in various High courts of the country.Following is a list of “UPSC answersheets under RTI” writs  filed sofar,and it is certainly not an exhaustive one.

1-NAVIN KUMAR NAVIN-W.P.(C) 3407/2012,Delhi HC

2-MANISH PARASHAR - W.P.(C) 3593/2012,Delhi HC

 3-GAURAV GUPTA - W.P.(C) 3683/2012, Delhi HC
4-NEERAJ SHARMA - W.P.(C) 4558/2012,HP HC,Shimla

5-D. AMARKESH - W.P.(C) 18517/2012, AP HC,Hyderabad

 6-ASHISH JAIN- W.P.(C) 408/2012, CAT,Rajasthan

 7-ASHISH KARN - W.P.(C) 5467/2012, Bombay HC

 8-PAWAN BANSAL- W.P.(C) 4228/2012, Gwaliar bench of MP HC

 9-SAURABH TYAGI- W.P.(C) 1082/2012,Chattisgarh HC

& a PIL  is also admitted and now pending  at Bombay HC which seeks to safeguard answersheets of all those candidates of CSE 2011 exam cycle who somehow could not approach the court in time to challenge UPSC’s non-compliance with SC judgment’s impact,apart from challenging the new record retention schedule with respect to answersheets.In this PIL,another ground i.e.Shiv Shambu case has been cited which enables a candidate to seek raw marks of other candidates and as according to UPSC’s own admission raw marks are only on evaluated answersheets ,so it is an added reason to safeguard answersheets of all candidates of CSE 2011 till the matter is finally resolved.Moreover,if this new retention schedule,which according to UPSC’s reply was changed without any meeting,will be used to destroy even a single answersheet then it wont be a honest mistake but  travesty of justice.

DR. PRACHI DILIP PAMPATTIWAR AND ORS V/S UNION PUBLIC SERVICE COMMISSION AND ORS

Bombay(Civil)

PIL/98/2012

After reading all this,you must have observed that certainly UPSC’s conduct is not upto the mark and a lot is left  to be desired in functioning of the apex public service commission having a constitutional mandate.With country-wide outcry against corruption and blame also being shared by bureaucrats,certainly top-recruiting agency is not setting an example on the front of transparency and accountability and as state PSCs only look upto it to set the related standards, so the drive to enforce transparency,accountability and responsibility should start from the top.

UPSC’s nervousness is because of the fact that many other pending cases related with its functioning will be impacted by this case and as a bicycle-stand,once  its defence will be breached in this case,domino effect will take place and irregularities,if any,will be exposed, shattering the myth of its full-proof system,which ironically it tries to hide any how.

UPSC further plays on the psyche of victims,frustrates and exhausts them even more by delaying judicial process with its costly legal cell bringing in novel antics.So,in this pursuit of justice,SC should clear the air as early as possible.

UPSC’s replies with regard to answersheets disclosure under RTI and our response--

These vague and general  replies which reveals less and hides more, range from “UPSC is in process of studying the judgement” to “work-load”(already rejected in Shaunak Satya case by SC), “integrity of its evaluation system could be affected” ,“Pre OMR sheets being so delicate that they can be damaged if they will try to provide its photocopy” .

It also says that as moderation is used by UPSC in mains and there are two kinds of marks-Raw marks on answersheets(though it has contradicted  this stand too) and modified marks  in marksheets , so it needed special treatment BUT it seems to be oblivious of the fact that bodies like CBSE and ICAI  also have some sort of moderation means there too, 2sets of marks exist,yet SC  gave this judgement and infact  Aditya bandopadhyay judgement itself  contains information about moderation in CBSE,which means SC had knowledge of the same and the same didn’t prevent  SC from taking the view it has taken with regard to evaluated answersheets’ disclosure.”Evaluated” obviously means marks must be there on the sheets and will be revealed in answersheets’ photocopies.

Now after SC’s rejection of many other exemptions under sub-section1 of section 8 of RTI like (i),(e),(g),(j) etc., UPSC is invoking  section 8(1)(d)of RTI for answersheets of MAINS,which is about Intellectual property Right (IPR),disclosure of which can benefit  third party(while we need to recall that SC has already put evaluated answersheets photopies under public domain through RTI)

But even that can at best apply to blank answersheets,question paper and model answers/solutions(even for that it should obtain and show a specific assignment of any copy-rights or rights of publication).UPSC itself  posts  question papers of previous years on its website(I have taken screen shots of the same) and in its affidavit in Dr.Prashant Chakkarwar versus UPSC case it has said that there are no model answers in Mains,while for pre it has recently started declaring model answer keys under RTI,thus partially complying with the related judgement. Evaluated answersheets are not its intellectual property by any means but their contents(as RTI will give only photocopy which will show the contents and not "original" answersheets of UPSC will be provided under RTI) are the creations of candidates.If UPSC claims that even evaluated answersheets are its intellectual property then same should apply to other exam conducting agencies BUT as SC has already put evaluated answersheets under the definition of "information" in public domain accessible under RTI then it means that SC has already rejected any such claim.If UPSC still claims that evaluated answersheets exclusively fall under its intellectual property right then UPSC should,long ago,have appealed against SC judgement of August last year as SC judgement goes 360degree against UPSC's belief.But it has not done the same as it knows that its stand is on thin grounds.

So,SC allowed the disclosure of evaluated answersheets by putting them under the definition of "information"under RTI even for the agencies like ICAI and CBSE,where moderation & hence raw and moderated marks are present and infact these agencies were party to the disposed cases in this context.Hence,there is no point talking about moderation/raw marks etc in the context of evaluated answersheets' disclosure under RTI as approved by SC.So,asking about evaluated answersheets(which are not UPSC's intellectual property under Section 8(1)(d) under RTI is legitimate and is a step aimed at transparency as attested by SC and not sundry information.

Infact in some replies it has said that EVALUATION of answersheets form part of the commission's working,so evaluated answersheets cant be provided.Interestingly it’s the evaluated answersheets based on SC judgement,which was asked under RTI and nothing regarding evaluation process was asked at all.

 At present,UPSC is neither exempted by SC nor by GoI  from RTI Act as far as disclosure of evaluated answersheets are concerned.So,it must comply with the expanded scope of RTI Act without any further resistance. (Though for quite some time it is asking to be exempted from RTI act and/or its specific provisions  like CBI,one can use his/her imagination as why this commission is so opaque and blatantly asking for exemption from a cherished act)

For Prelims OMR sheets –As there is no scaling/moderation in Pre anymore,so UPSC cant hide behind that argument for Pre OMR sheets but even that has not been provided by UPSC sofar.So,first of all,immediate order should be given for the disclosure of the same. Regarding Pre OMR sheets UPSC in its recent RTI reply has said that they have to surf through lakhs of records and also physical handling of such voluminous and delicate records will cause irreparable damage to such records and hence,section 7(9) of RTI act is invoked to deny info.While all over the country many agencies are providing photocopies of such “delicate”records, on demand under RTI.