Union Public Service Commission vs Shiv Shambhu
2008 Latest Caselaw 1522 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on: July 18, 2008
                                    Date of decision: 3rd September, 2008


               LPA No. 313 of 2007 & CM APPL. No. 6468/2007


       UNION PUBLIC SERVICE COMMISSION              ... Appellant
                              Through: Mr. L. Nageshwar Rao,
                              Senior Advocate with Ms. Bintu
                              Tamta, Advocate.

                           versus


       SHIV SHAMBHU & ORS                                    .... Respondents
                                          Through : Mr. Aman Lekhi, Senior
                                          Advocate with Mr. Sumit Kumar,
                                          Mr. Rakesh Kumar and Mr.
                                          Jaspreet, Advocates for R-1 to
                                          R-4 and R-6 to R-22.
                                          Mr. Prashant Bhushan with
                                          Mayank Misra, Advocates
                                          for R-23.
                                          Mr. K.C. Mittal with Mr. Sumit
                                          Babbar, Advocates for the Central
                                          Information Commission

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S. MURALIDHAR

       1.      Whether Reporters of local papers may be
               allowed to see the judgment?                        Yes
       2.      To be referred to the Reporter or not?              Yes
       3.      Whether the judgment should be reported             Yes
               in Digest?

                           JUDGMENT

DR. S.MURALIDHAR

1. The Union Public Service Commission („UPSC‟) has in this appeal

challenged the judgment dated 17th April 2007 passed by the learned Single

Judge of this Court dismissing its Writ Petition (C) No.17583 of 2006. The

UPSC had filed the said writ petition seeking the quashing of an order dated 13 th

November 2006 passed by the Central Information Commission („CIC‟), New

Delhi allowing the appeal filed by the Respondents herein under Section 19 (3)

of the Right to Information Act, 2005 („RTI Act‟).

2. At the outset this Court directs the deletion of the CIC which has been arrayed

as Respondent No.1 to this appeal, consequent upon it being arrayed as such in

the writ petition. This Court has repeatedly issued practice directions stressing

that a judicial or quasi-judicial body or Tribunal whose order is challenged in a

writ petition (and thereafter possibly in appeal) ought not to itself be impleaded

as a party respondent. The only exception would be if malafides are alleged

against any individual member of such authority or Tribunal in which case again

it would be such member, and not the authority/Tribunal, who may be impleaded

as a respondent. Accordingly the cause title of the present appeal will read as

Union Public Service Commission v. Shiv Shambhu & Ors.

3. The Respondents herein were candidates who had appeared in the Civil

Services (Preliminary) Examination, 2006. The Civil Services Examination

(CSE) - which is in two parts, a preliminary examination followed by a Main

examination - is a competitive examination held every year by the UPSC, a

constitutional authority under Article 320 of the Constitution of India. The

successful candidates are, in the order of their merit, recruited to the Indian

Administrative Service, Indian Foreign Service, Indian Police Service and non-

technical Civil Services. Pursuant to the recommendations of the Kothari

Committee in 1974-77, which was constituted by the central government,

changes were introduced in the pattern of the CSE. This was followed by

another review carried out by the Satish Chandra Committee in 1988-89

whereafter certain other changes were introduced. Importantly one of the

recommendations made by the Kothari Committee was in regard to adopting of

"scaling of marks" for different papers using appropriate statistical techniques.

4. The CSE preliminary examination has two objective type papers: a general

studies paper of 50 marks and one optional subject of 300 marks. This serves as

a screening test for the Civil Services (Main) Examination. On an average,

around 400,000 candidates sit for the CSE preliminary examination every year.

It is conducted at approximately 940 centres in 45 different cities in the country.

For the optional paper of 300 marks in the preliminary examination, a candidate

can choose one of the 23 subjects in various disciplines like Social Sciences,

Physical Sciences, Life Sciences, Business Studies, Engineering, Medical

Sciences etc. At the end of the preliminary examination a short list of candidates,

arranged in the order of merit, is prepared to the extent of 12 to 13 times the

number of vacancies. Each year there is likely to be different cut off marks for

each optional subject depending on the level of overall performance and the

comparative level of difficulty in that subject.

5. As far as the present dispute is concerned, its genesis lay in the applications

made by Respondents herein to the UPSC in August 2006 seeking the following

information:

(a) copy of the cut off marks list for optional subject and General Studies.

(b) separate cut-off marks for every subject and for General Studies by different categories such as General, OBC, SC, ST including copies of the relevant documents.

(c) details of the marks obtained by the candidate in the preliminary examination.

(d) the modal answers for each series of every subject.

(e) the reason for retaking the examination for "Public Administration" optional subject on 18th June 2006.

6. The Central Public Information Officer („CPIO‟) of the UPSC declined to

provide the information sought under (a) to (d) above and gave the following

reasons:

"2. In this regard, I am to state that the information sought by you forms part of Commissions crucial secrets and intellectual property under Section 8(1)(d) of the RTI Act, 2005. The information requested by you is in the nature of secret documents under Section 8(2) of the RTI Act 2005 and there being no public interest requiring its disclosure, it cannot be disclosed as the disclosure would harm the protected interests. I am to further state that the disclosure of this information shall irreparably undermine the integrity, strength and efficacy of the competitive public examination systems of paramount significant conducted by the UPSC.

3. I am to further invite your attention to para 8 (iv) of the Commission‟s Notice, which appeared in the Special Supplement of Employment News dated 3rd December 2005 which is reproduced below:

"Candidates are informed that as the Preliminary Examination is only a screening test, no marks sheets will be supplied to successful or unsuccessful candidates and no correspondence will be entertained by the Commission, in this regard."

7. The appeal to the Appellate Authority of the UPSC was rejected by an order

dated 20th October 2006. In the said order it was, inter alia, explained by the

Appellate Authority as under:

"10.1.......... The undersigned notes that CS (P) is a highly competitive examination which caters

to the requirement of recruitment of civil servants of wide spectrum of background. Keeping in view the peculiar nature of examination, the candidates are allowed an option to select any one optional subject out of 23 options for the examination. Therefore, the process of evaluation of performance of candidates in such varied subjets involves designing a meticulous system of balancing the degree of difficulty of individual subjects so as to evenly evaluate the performance of the candidates. This process has been designed by the Commission after years of expertise and consultation with the subject experts. The disclosure of individual scores of candidates along with the keys of questions papers would have wider implications to the extent of derailing the entire structure and process of Civil Services Examination. Further, the sharing of complex intricacies on evaluation of performance in various optional subjects would seriously endanger the process of secrecy and confidentiality of the Civil services Examination."

8. In the order passed by the Appellate Authority the following further

justification was offered:

"10.3 The issue regarding procedure/ methodology to be followed by Public Service Commissions in conducting its examinations has been extensively deliberated upon by the Hon‟ble Supreme Court in the Civil Appeal No. 8609 of 2003. In arriving at the decision of not to share the information solicited by the applicant, reliance has been placed by the Authority on the observations as reproduced below by the Hon‟ble Supreme Court in the Civil Appeal mentioned above.

"In that view of the matter, we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by the Uttar Pradesh Public

Service Commission (U.P.P.S.C.) after an expert study and in such matters, the Court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the rules.

Ultimately, the agency conducting the examination has to consider as to which method should be preferred and adopted having regard to the myriad situations that may arise before them."

9. Aggrieved by the order of the Appellate Authority the Respondents filed an

appeal before the CIC. After discussing the provisions of the RTI Act, the CIC

concluded that the question papers prepared by the subject experts for the UPSC

were "original literary works" and that as such the copyright therein vested in

the UPSC and further that under Section 8(1) (d) RTI Act, the CIC could order

that it should not be disclosed. However, under the same provision the

competent authority was empowered to make the disclosure of the material if it

was satisfied that larger public interest so warranted. Accordingly, the CIC

directed as under:

"i) The UPSC shall, within two weeks from the date of this order, disclose the marks assigned to each of the applicants for the Civil Services Preliminary Examination 2006 in General Studies and in Option Papers; and

ii) The UPSC, within two weeks from the date of this order, shall also disclose the cut-off marks fixed in respect of the General Studies paper and in respect of each of the Option Papers and if no such cut-off marks are there, it shall disclose the subject-wise marks assigned to short-listed candidates; and

iii) The UPSC shall examine and consider under Section 8 (1) (d) of the RTI Act the disclosure of the scaling system as it involves larger public interest in providing a level playing field for all aspirants and shall place the matter before the

Competent Authority within one month from the date of this order. This will also cover the issue of disclosure of model answers, which we recommend should in any case be made public from time to time. In doing so, it shall duly take into account the provisions of Section 9 of the RTI Act."

10. Aggrieved by the order of the Appellate Authority the UPSC filed W.P. (C)

No.17583 of 2006 in this Court. The UPSC submitted before the learned Single

Judge that since the optional subject was not common to all the candidates and

could be one of the 23 offered, a methodology has to be developed to make the

marks obtained in the different subjects comparable across candidates. This

necessitated deployment of the methodology of „scaling‟ of marks. A certain

scientific formula was used for scaling of the marks and as such the cut off was

implemented subsequent to the examination. According to the UPSC if the cut

off marks, the individual marks and the key answers to the questions were

disclosed, it would enable unscrupulous candidates to reverse engineer and

arrive at the scaling system which was a carefully guarded secret. According to

the UPSC this would undermine the very object of selecting the best candidate.

It was further argued before the learned Single Judge that the disclosure of the

cut off marks or the scaling method would "enable short cut techniques by

coaching institutes which would reduce the examination process to the level of

mere surmising rather than being a test of substantive knowledge." The UPSC

also provided the learned Single Judge information concerning the screening

methodology in a sealed cover.

11. Learned counsel for the Respondents submitted before the learned Single

Judge that there was nothing secret about the scaling method since it had already

been disclosed by the UPSC in an affidavit dated 20th March 2007 filed by it

before the Supreme Court in SLP (Civil) No. 23723 of 2002 (Union Public

Service Commission v. Satish Chandra Dixit). In the said affidavit the UPSC

had explained that the scaling system followed by the Uttar Pradesh PSC was a

linear method known as the Standard Deviation method whereas what was

followed by the UPSC was the Normalized Equi-percentile method.

12. After going through the contents of the sealed cover the learned Single

Judge found that the scaling methodology deployed by the UPSC stood already

disclosed in its counter affidavit filed in the Supreme Court. The learned Single

Judge rejected the argument that if the information was revealed a large number

of dummy candidates would be made to take the examination by unscrupulous

coaching institutes which would result in the alteration of scaling of marks in

certain specific subjects, thereby depriving meritorious students in other papers

from qualifying. The learned Single Judge held:

"22 ........................ The sealed marks, employing the methodology revealed by the UPSC before the Supreme Court, is clearly dependent upon the number of candidates. This is inherent in the formula employed itself. However, what the UPSC seems to ignore is that the cut-off mark itself would change. The scaling methodology adopted by them, which seeks at normalizing the distribution curve, would take care of the abnormalities (skewness) caused by the dummy candidates, if any."

13. As regards the likely misuse of this information by the coaching institutes,

the learned Single Judge observed:

"23. It is important to note that prior to the examination, the cut-off mark would not be known. Nor would it be known to any of the coaching institutes as to how many candidates are going to appear in each of the optional papers. Apart from this, it would also not be known to anybody as to what the performance of any candidate would be in each of the papers. It is, therefore, unfathomable that the coaching institutes would be able to undermine the system of examination by disclosure of the cut-off mark of the previous and the actual marks of the candidates of the previous year when the marks obtained in any year by different candidates is independent of the marks obtained by candidates in any other year. The examination for each year is entirely independent of the examinations of the other years. So, the data of one year would have no bearing on the data for the next year. The question papers would be different; the candidates would be different; the composition of the number of candidates taking each of the optional papers would be different. The cut-off mark would not be known prior to the examination and, therefore, revealing the data sought by the respondents 2 to 24 in the present case would, in my view, have no bearing on the sanctity of the examination system."

14. By the impugned judgment the learned Single Judge declined to interfere

with the directions given by CIC except that direction (ii) issued by the CIC was

modified to the extent that the cut off marks for the combined total of raw

General Studies marks and scaled optional paper marks was not required to be

disclosed. Direction (iii) was modified to the extent that UPSC would be

required to disclose the model answers.

15. We have heard the submissions of Mr. L. Nageshwar Rao, learned Senior

Advocate appearing for the UPSC, Mr. Aman Lekhi, learned Senior Advocate

for the respondents 1 to 22 and Mr. Prashant Bhushan, learned counsel for the

respondent No.22 (these numbers of the Respondents stand changed in view of

the deletion of the CIC as a party respondent).

16. Mr. Rao, learned Senior Advocate reiterated the submissions made on behalf

of the UPSC before the learned Single Judge. We were also given in a sealed

cover containing three confidential notes describing the details of the Scheme of

the Civil Services (Preliminary) Examination, the scaling methodology used by

the UPSC and a note explaining how the disclosure of the individual marks, cut-

off marks and solution keys in respect of the Civil Services (Preliminary)

Examination can lead to deciphering of the scaling formulation thus

undermining the efficacy of the system.

17. At the outset we wish to observe that a perusal of the documents submitted

by the UPSC in a sealed cover, are not of such a nature that can be characterised

as secret, or of a type the disclosure of which would not be in public interest. As

regards the scaling methodology, as already been pointed out by the learned

Single Judge, this is no different from what already stands disclosed by the

UPSC to the Supreme Court in its counter affidavit filed in SLP (C) No. 23723

of 2002 and is therefore in the public domain. As regards the apprehension

expressed by the UPSC that the scaling formulation could be deciphered first

once the cut-off marks and solution keys in respect of individual subject

disclosed, we fail to understand how if such information is deciphered in relation

to the examination that has already been conducted, somehow it would enable

the manipulation of the results of a preliminary examination to be held in future.

18. The central thrust of the argument of Mr. Rao was that armed with the

information relating to the 2006 Preliminary Examination, coaching institutes

across the country would somehow able to anticipate the subjects in which, if

dummy candidates are fielded, there could be a skewing of the results.

According to him, the UPSC apprehends that in a particular subject, by getting a

large number of dummy candidates to perform badly, the working of scaling

methodology which is already known would result in an unfair advantage to

candidates opting for that paper. As a corollary it would result in severe

prejudice and an unintended disadvantage to a meritorious students opting for

other subjects.

19. This argument has only to be stated to be rejected. It is really impossible to

imagine how the coaching institutes can somehow anticipate the levels of

difficulty in a particular subject in a future examination and plant dummy

candidates in that subject or in other subjects. Considering that 400,000 students

sit for the CSE preliminary examination all over the country every year, this

would perhaps require a large scale operation by coaching institutes all over the

country and that again presumes that they will somehow correctly predict what

the overall performance of the candidates in any particular subject. Then again,

this is only a preliminary examination at the end of which a shortlist of

candidates 10 to 12 times the number of advertised posts is drawn up for the

Main examination. It is nobody‟s case that the results of the main examination

are somehow affected in that process. Further still, this Court is unable to

understand the apprehension of the UPSC that by disclosing the working of the

scaling methodology for the preliminary examination, merit can get

compromised and candidates with less merit would be selected. The whole

purpose of having three levels of examination i.e. preliminary examination, main

examination and then interview, is to ensure that only meritorious candidates are

selected for government service. We are of the view that the apprehension

expressed by the UPSC is not well-founded.

20. We find no merit in this appeal and affirm the impugned order dated 17th

April 2007 passed by the learned Single Judge. The stay order granted by this

Court on 21st May 2007 is stand vacated.

21. The appeal and application are dismissed.

S. MURALIDHAR, J.

CHIEF JUSTICE rd 3 September, 2008 dn/rk