Union Public Service Commission vs Angesh Kumar & Ors.
2012 Latest Caselaw 4143 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 13th July, 2012

+                          LPA No.229/2011

%      UNION PUBLIC SERVICE COMMISSION        ....Appellant
                    Through: Mr. Naresh Kaushik & Ms. Aditi
                             Gupta, Advs.

                                       Versus

       ANGESH KUMAR & ORS.                    ..... Respondents
                  Through: Mr.    Rajesh     Kumar       Tiwari,
                           Respondent No.2 in person.
                           Mr. B.V. Niren, Adv. for R-13.

                                       AND

+                          W.P.(C) NO.3316/2011

%      DURGESH KUMAR TRIPATHI & ORS.       ....Petitioners
                  Through: Mr. Devendra Sharma, petitioner
                           No.3 in person.

                                       Versus

       UNION PUBLIC SERVICE COMMISSION & ANR... Respondents
                    Through: Mr. Naresh Kaushik & Ms. Aditi
                             Gupta, Advs.
                             Mr. Mohit Jolly, Adv. for R-2.

CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW




LPA No.229/2011 & WP(C) No.3316/2011                                 Page 1 of 13
 RAJIV SAHAI ENDLAW, J.

1. LPA No.229/2011 impugns the order dated 04.02.2011of the learned

Single Judge in Review Petition No.51/2011 preferred by the respondents

seeking review of the order dated 13.01.2011 disposing of W.P.(C)

No.218/2011 preferred by the respondents.

2. The twelve respondents in LPA No.229/2011 had appeared in the

Civil Services Preliminary Examination held on 23.05.2010 by the appellant

Union Public Service Commission (UPSC) and were unsuccessful therein.

They sought certain information under the Right to Information Act, 2005

and which information was denied to them by the Public Information

Officer of the appellant UPSC. Aggrieved therefrom, they filed W.P.(C)

No.6931/2010 which was dismissed vide order dated 08.10.2010 on account

of pendency then of SLP No.23250/2008 preferred by the appellant UPSC

before the Supreme Court against the judgment dated 03.09.2008 of a

Division Bench of this Court in LPA No.313/2007 titled UPSC Vs. Shiv

Shambhu entailing the same question. The respondents thereafter filed SLP

No.32443/2010 to the Supreme Court. The Supreme Court vide order dated

18.11.2010 dismissed SLP No.23250/2008 of the UPSC, for the reason of

the change effected by the UPSC in the pattern of examination with effect

from the year 2011. Thereafter the Supreme Court vide order dated

03.12.2010 disposed of the SLPNo.32443/2010 preferred by the respondents

observing that since SLP No.23250/2008 against the judgment dated

03.09.2008 of the Division Bench of this Court had been dismissed though

as infructuous, the case of the respondents herein will also be governed by

the said judgment dated 03.09.2008.

3. The respondents on the basis of said order dated 03.12.2010 of the

Supreme Court again sought the information from the appellant UPSC and

upon not meeting with any success, filed W.P.(C) No.218/2011, from which

this appeal arises, seeking a direction to the appellant UPSC to disclose the

following information:

(i) details of marks (raw and scaled marks) obtained by the

selected candidates in their respective optional subjects of the

Civil Services Preliminary Examination, 2010;

(ii) details of the marks (raw and scaled) obtained by the

respondents themselves in the said examination;

(iii) the cut off marks of each optional subject in the said

examination.

4. The aforesaid writ petition was disposed of vide order dated

13.01.2011 observing, finding and holding as under:

(i) that in view of the respondents having earlier applied under the

RTI Act for the information and having thereafter preferred a

writ petition in this Court and SLP in the Supreme Court, the

respondents were not required to again follow the procedure

under the RTI Act;

(ii) that the law having been settled by the Supreme Court, there

was no need to relegate the respondents to the process under

the RTI Act;

(iii) On the plea of the counsel for the appellant UPSC that raw

marks were not available and thus could not be disclosed and

that model answers were available only for some of the

questions, it was observed that whatsoever was not available

with the UPSC need not be disclosed;

(iv) no prejudice would be caused to anyone by disclosure of the

result of the candidates who had qualified;

(v) that the model answers as available with the UPSC were also

liable to disclosure, in accordance with the various dictas on

the subject.

The appellant UPSC was accordingly directed to make the disclosure.

5. The respondents filed an application for review of the aforesaid order

primarily challenging the statement of the counsel for the appellant UPSC

that raw marks and the model answers for all the questions were not

available. It was their contention that the appellant UPSC as per its rules

was required to maintain the same for the prescribed period and which

period had not expired.

6. The learned Single Judge vide impugned order dated 04.02.2011 on

the said review application observed, found & held:

(i) that the marks as appearing on the answer sheets are raw

marks;

(ii) that the answers sheets are required to be preserved for one

year and thus the raw marks ought to be available with the

UPSC;

(iii) the contention of the appellant UPSC that raw marks did not

subsist upon being scaled and thus could not be disclosed was

rejected. It was held that the raw marks have to be necessarily

available;

(iv) that since all the questions in the examination were of objective

type, there could be no possibility of the model answers of any

of them being not available;

UPSC was accordingly directed to disclose the raw marks as well as

the model answers of the questions in the examination.

7. Notice of this appeal was issued and the operation of the order dated

04.02.2011 of the learned Single Judge stayed.

8. W.P.(C) No.3316/2011 is filed, also seeking a direction to the UPSC

to disclose the same information as subject matter of LPA No.229/2011

relating to the same examination and qua the nine petitioners therein. While

the said petition was pending before the learned Single Judge, it was pointed

out that the controversy therein was the same as in LPA No.229/2011.

Accordingly the said writ petition was transferred to this Bench and the

counsel for the petitioners in the writ petition has raised the same arguments

as the counsel for the respondents in the LPA.

9. As would be apparent from the above, the respondents prior to filing

the writ petition from which this appeal arises had filed a writ petition for

the same relief but which writ petition was dismissed owing to the question

entailed therein pending consideration before the Supreme Court in SLP

No.23250/2008 preferred by the appellant; the respondents also had then

preferred SLP No.32443/2010 and which SLP as aforesaid was disposed of

with a direction that the respondents would be entitled to the same relief as

given by the Division Bench of this Court vide judgment dated 03.09.2008

in LPA No.313/2007. It thus becomes necessary to first examine the said

LPA No.313/2007. The same was preferred against the judgment dated

17.04.2007 of the Single Judge in W.P.(C) No.17583/2006. In the said writ

petition also, the same disclosure as in the present proceedings was sought

from the UPSC, though pertaining to the Civil Services (Preliminary)

Examination, 2006 and UPSC had contested the demand for such disclosure

on the same grounds as being urged herein.

10. It is the case of UPSC, that the Civil Services Examination comprises

of two parts, i.e. the Preliminary Examination and the Main Examination

which is followed by interview; that the Preliminary Examination is in the

nature of a screening test to select twelve to thirteen times the number of

vacancies in the order of merit; that the Preliminary Examination comprises

of two papers, one of General Studies which is compulsory and an optional

paper from out of 23 subjects offered; that since different examinees opt for

different optional paper, UPSC has developed a methodology to make the

marks obtained in each subject comparable; through this methodology,

scaling of marks is done so that the marks obtained in different subjects are

comparable with each other; scientific formula is used for such scaling of

marks; said scientific formula has been further changed and modified by the

experience, to suit the needs and requirement of UPSC; that insofar as the

marks of compulsory subject are concerned, no scaling is applied; that prior

to the examination, no cut offs can be presumed and the cut offs that are

implemented are only post examination; the marks in the Preliminary

Examination are not counted in the Main Examination.

11. It is further the plea of UPSC that revealing the cut off marks and the

keys to the question papers would enable unscrupulous persons to engineer

and arrive at the scaling system which is kept secret by the UPSC; that if the

scaling system adopted by the UPSC is disclosed, then the entire system

would be undermined and defeat the selection.

12. The learned Single Judge in judgment dated 17.04.2007 in W.P.(C)

No.17583/2006 found, observed and held, that the UPSC in a counter

affidavit filed in the Supreme Court had already disclosed the scaling

method adopted by it and thus the said scaling method could no longer be

said to be secret or confidential; that there was no merit in the contention of

UPSC that disclosure of cut off marks would undermine the selection

process; that the disclosure of cut off marks of one year would not effect the

examination of a subsequent year which is independent; that the data of one

year has no bearing on the following years. Accordingly, holding that the

scaling method already stood disclosed and there was no bar to the

disclosure of the cut off marks and the model answers, direction for

disclosure thereof was issued.

13. UPSC, as aforesaid preferred LPA No.313/2007 against the aforesaid

judgment and which was dismissed on 03.09.2008. The SLP

No.23250/2008 preferred by the UPSC to the Supreme Court has also been

dismissed though as infructuous but without setting aside the judgments

dated 17.04.2007 and 03.09.2008 (supra) of the Single Judge and the

Division Bench of this Court. Rather, when SLP No.32443/2010 preferred

by the respondents came up before the Supreme Court, the same was

disposed of with a direction that the respondents shall be entitled to the

relief as given by the High Court in the said judgments.

14. In the aforesaid factual scenario, we are unable to find any scope for

further adjudication inasmuch as the Supreme Court has already directed the

information as aforesaid to be supplied to the respondents. Once it is held

that the UPSC is bound to supply the said information, W.P.(C)

No.3316/2011 will also have to be allowed inasmuch as the same

information is sought therein. Though undoubtedly the petitioners in

W.P.(C) No.3316/2011 ought to have first followed the procedure

prescribed under the RTI Act but the petition having been entertained and

having remained pending in this Court and this Court being required to

adjudicate the controversy in any case in LPA No.229/2011, need is not felt

to at this stage relegate the petitioners to following the procedure under the

RTI Act.

15. The counsel for the UPSC before us has also urged that raw marks are

an intermediary stage and ought not to be treated as information and only

after scaling / actualization can the marks scored be computed and UPSC is

not liable to disclose such intermediary marks. It is also argued that the

counter affidavit in the Supreme Court on the basis whereof it has been held

that the method of scaling already stands disclosed, does not in fact disclose

the same and the scaling system is thus not in public domain.

16. We are afraid, the latter of the aforesaid argument cannot be

entertained at least before this Court. The Single Judge in judgment dated

17.04.2007 (supra) held that the method of scaling stood disclosed in the

counter affidavit in the Supreme Court and we do not find any argument to

have been raised by UPSC before the Division Bench that the method of

scaling had not been so disclosed. There is no discussion whatsoever in the

judgment dated 03.09.2008 of the Division Bench in this regard. Again, if it

was the case of UPSC that the method of scaling had not been disclosed and

this Court had wrongly presumed the same to have been disclosed, the

UPSC ought not to have got its SLP dismissed as infructuous and ought to

have got the said matter adjudicated by the Supreme Court. On the

contrary, the Supreme Court by dismissal of the SLP of the UPSC and by

order dated 03.12.2010 in the SLP of the respondents has expressly directed

the disclosure of the method of scaling. After the matter has been dealt with

by the Supreme Court, through speaking order, it is not for this Court to re-

examine the same.

17. We are even otherwise of the view that there could be no secrecy or

confidentiality about the method of scaling / actualization adopted by an

examiner. The very objective of the RTI Act is transparency and

accountability. The counsel for the UPSC has been unable to show as to

how the disclosure of the scaling / actualization method prejudices the

examination or affects it competitiveness. The Supreme Court in

U.P.P.S.C. Vs. Subhash Chandra Dixit AIR (2004) SC 163 approved of the

practice of scaling / actualization, though in the subsequent decision in

Sanjay Singh Vs. U.P.P.S.C. AIR (2007) SC 950, certain reservations were

expressed with respect thereto. Be that as it may, though the non-disclosure

of the method devised for scaling / actualization till declaration of the result

may be justified, it cannot be said to be justified after the result is declared.

The Supreme Court in The Institute of Chartered Accountants of India Vs.

Shaunak H. Satya (2011) 8 SCC 781 has held that the answer scripts and

the answer keys are liable to disclosure after the result of the examination

has been declared. If it were to be held that there is any secrecy /

confidentiality about the raw marks and the method of scaling, the

possibility of errors therein or the same being manipulated cannot be ruled

out. 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.

18. We therefore do not find any merit in LPA No.229/2011and dismiss

the same. Axiomatically, W.P.(C) No.3316/2011 is allowed and the UPSC

is directed to within eight weeks hereof disclose the information sought

therein.

19. Though UPSC has indulged in re-litigation but giving benefit of

doubt to UPSC that the resistance to disclosure is an after effect of the pre-

RTI era, we refrain from imposing any costs on UPSC.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 13 , 2012 'gsr '