Central Information Commission
Shri K. R. Balaji vs Union Public Service Commission (Upsc) on 4 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01539 dated 29.11.2007
Right to Information Act 2005 - Section 19
Appellant - Shri K. R. Balaji
Respondent - Union Public Service Commission (UPSC)
Facts:
By a request of 3.5.07 consisting of 20 questions Shri K. R. Balaji of Madurai TN made an application to the CPIO & Jt. Secretary (Examination) UPSC regarding Civil Services Preliminary and Main examination 2006 for the Roll No. 089653. To this he received a response pointwise from CPIO Shri A. K. Khanna, Dy. Secretary on 4.6.07 as follows:
"Information in respect of points 1 to 5 of your letter is furnished below:
1. A total number of 44517 candidates had applied for the optional paper Public Administration.
2. A total number of 22635 candidates appeared for the original preliminary examination held on 14th May, 2006 for the optional Public Administration.
3. A total number of 17037 candidates appeared for the re-examination held on 18th June, 2006 for the optional Public Administration.
4. A total number of 882 candidates cleared the Civil Services Main Examination 2006 with Public Administration as optional paper in the preliminary examination, 2006.
5. The proportion of candidates who cleared Public Administration optional i.e. number of appeared in original is 3.89. Percentage of qualified candidates in other optional subjects varies as per performance of the candidates. The information is not available in the requested format.
3Information sought on point Nos. 6, 7, 13 & 14 is not available in the requested format and, therefore, cannot be shared.
1As regards the information sought on point Nos. 8, 9, 10, 11, 12, 15, 17, 18 & 19, it is informed that the requisite information cannot be shared as it affects the confidentiality and integrity of the examination process and also no public interest would be served thereby.
As regards your query at point 16, it is informed that out of a total number of 533 vacancies, 144 vacancies have been reserved for OBC category (27%) for the Civil Services Examination, 2006.
Regarding Point No. 20, it is informed hat a total number of 522 representations (including your representation) have been received seeking information under the RTI Act 2005 in respect of the Civil Services Exam., 2006. All of them have been suitably replied."
Not satisfied with the response to Points 5 to 19, Shri Balaji moved his first appeal before Shri V.P. Singh Jt. Secretary (E) on 3.7.07, upon which Shri K. S. Bariar, Jt. Secretary (E) and appellate authority, in his order of 23.8.'07 directed as follows:
"3. Section 7 (9) of the RTI Act, 2005 stipulates that 'An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. With regard to points 5, 6, 7, 13 and 14 of Appellant's request in his original RTI Application, the CPIO, UPSC thus, is not justified in denying information to him stating that information sought on above points is not available in the requested format and, therefore, cannot b shared. The CPIO, UPSC shall provide the information in a format available and considered appropriate to the appellant within 30 days from the date of issue of this Order.
4. Section 8 (1) (d) of the RTI Act, 2005 provides that 'Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information..., the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information'. Since the information sought by the appellant with regard to points 8, 15, 17, 18 & 19 in his RTI application are of nature as related to confidential process of the preparation of result and come in the purview of above mentioned section of the RTI Act, the CPIO, UPSC decision 2 not to share these information stating that these would affect the confidentiality and integrity of the examination process and also no public interest would be served thereby, is in order. Also, with regard to scaling and cut-off marks etc in the Civil Services (Prel.) Examination, it would be pertinent to intimate that the Commission has filed an LPA No. 313/2007 UPSC vs. CIC &Ors in the Delhi High Court and the matter is sub-judice.
5. Section 8 (1) (j) of the RTI Act, 2005 provides that 'Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the CPIO or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information. Since the information sought by the appellant with regard to points 9, 10, 11 & 12 in his RTI application fall into the above mentioned category, the CPIO, UPSC decision not to share these information stating that these would affect the confidentiality and integrity of the examination process and also no public interest would be served thereby, is in order.
6. With regard to point 16, it is intimated that this is a new point which does not form part of the Appellant's original application submitted to the CPIO. Therefore, I do not find it proper to take up this matter for consideration in the instant appeal."
This order was complied with by CPIO Shri Rameshwar Dayal, DS through his letter of 19.9.07 as follows:
"In regard to point No. 5 of your original RTI application the subject wise candidate appeared and qualified for Civil Services (Main) Exam 2006 from Civil Services (Preliminary) Exam 2006 is enclosed at Annexure 'A'.
In regard of point Nos. 6, 7, 13 & 14, the number of candidate applied appeared and written qualified for appearing in the Personality Test in the Civil Services (Main) Exam 2006 with Public Administration and Sociology as one of their optional subject(s) are as under:3
Subject No. of candidates No. of candidates No. of candidates applied in Civil appeared in Civil written qualified Services (Main) Services (Main) for appearing in Exam 2006 Exam 2006 the Personality Test.
Public Admn. 2032 2005 404 Sociology 911 882 145 With this was attached a statement of optional subject wise breakup of the number that appeared and qualified in the Main examination in Civil Services Preliminary Examination 2006 with the subject, number of those that appeared, those that qualified for the main examination and the proportion of candidates qualified all with regard to 23 subjects.
In his prayer before us in second appeal however, Shri Balaji has pleaded as follows:
"I request that the above said information may be disclosed to so that if I am a deserving candidate I shall not miss the opportunity to serve the nation. Also, I humbly request that, if the UPSC does not reveal the details even after this appeal, the Central Information Commission shall approach the Court of Justice on my behalf and render me justice."
To this appeal he attached copies of cut off marks published by Tamilnadu Public Service Commission for various examinations in support of his plea to press for disclosure. In reference to the "above said information" sought in his prayer before us, Shri Balaji's points of appeal are as follows:
"Point 5 Orders may be passed so that the reason behind such unequal and uncompetitive proportion between Optional subjects be declared and suitable follow up action may be taken."
Point 12: The appellate authority has not sanctioned the declaration of these details under sec. 8(j). More so the details asked for does not have any confidential details about the candidate but only simple details that could clear my doubts about some errors that has caused my non selection. Therefore, necessary order for disclosure of the above details may be passed."
4Point 15: "The Appellate authority has not sanctioned the declaration of these details under sec. 8(d), this is against the essence of RTI Act 2005 and it is well known fact that there is a reservation of 27% for the OBC candidates in the vacancies that are arrived at for the final selection and the No. of candidates belonging to OBC category must be in proportion to that alone. Then, it must be for the UPSC to declare the No. of OBC candidates selected for personality test if it follows the reservation policy as sanctioned by the Parliament of India. More over, under Sec. 8 of the RTI Act 2005 says ". . . Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person".
In addition, he has asked for cut off marks (Points 8 & 18 and scaling method (Pt. 9, 10, 11, 17, 18 & 19) The appeal was heard by videoconference on 4.3.09. The following are present:
Appellant at NIC Studio Madurai Mr. K. R. Balaji Respondents at CIC Studio Delhi Mr. Naresh Kaushik, Advocate Ms. Amita Kalkar Choudhary, Advocate Mr. Prachish Khanna, CPIO Mr. Jaswant Singh, CPIO At the outset of the hearing it was made clear that the disclosure of cut off marks as directed by this Commission in its Full Bench Decision dated 23.4.2007 in Complaint/Appeal Nos. CIC/WB/C/2006/00223, CIC/WB/ A/2006/ 00469 & 00394 & CIC/OK/A/2006/00266/ 00058/ 00066/ 00315 has been stayed by order of the Hon'ble Supreme Court of India in SLA (Civil) No. 23250/2008 - UPSC vs. Shiv Shambhu & Ors. Under the request for cut off marks point 8 to 11 and 17 to 19 are covered such points were therefore not to be considered in the present appeal. The remaining three questions quoted above against points 5, 12 and 15 were then taken up for examination.
With regard to point 12 learned Counsel for respondents Shri Kaushik submitted that UPSC is reconsidering its stand in light of the decision of the Commission dated 10.2.2009 in the case of Shri S. S. Gupta vs. UPSC (in 5 Appeal No. CIC/WB/A/2007/0174) However, with regard to point 15, he submitted that disclosure of number of candidates belonging to OBC category selected for personality test and their ratio to the vacancies reserved for recruitment through CSE 2006 that this proportion is fixed through cut off marks. If the numbers are given, as requested by Shri Balaji, the method applied for cut off will also be exposed. It will give away as to how various candidates qualified because this has a direct bearing on cut off marks even through cut off marks for OBCs are separate from those of others.
Appellant Shri Balaji reiterated that what he was requesting was not the method of determination of those who qualified for personality test but only the number.
DECISION NOTICE Having heard the parties and examined the record, we find that the only points now to be considered are the answers to points 5, 12 & 13, the remaining being stayed by the orders of the Hon'ble Supreme Court of India in SLA (Civil) No. 23250/2008 - UPSC vs. Shiv Shambhu & Ors. What appellant has sought with regard to point 5, however, is that we issue orders on action to be taken by the UPSC in declaring the results of examination. This is clearly beyond the purview of RTI Act and, therefore, beyond the jurisdiction of this Commission. On Point 12, we find that we have already decided on 10.2.2009 as follows in the case of Shri S. S. Gupta vs. UPSC in Appeal No. CIC/WB/A/2007/0174 "In deciding the appeal, however, the First Appellate Authority Shri Biresh Kumar Addl. Secy. will keep in mind that sec. 11 sub-section (1) requires to be taken recourse to only where the CPIO "intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party"1.He must, therefore, before making a decision on the subject examine whether candidates appearing in a public examination expect the UPSC to treat as confidential the marks obtained by successful candidates, and if so, the ground for so concluding. He 6 will also bear in mind that sec. 7(9) does not exempt a public authority from disclosing information but only mitigates the requirement, if providing the information in the form in which it is sought, "would disproportionately divert the resources of the public authority or would be detrimental to safety or preservation of records". Therefore, it only allows for providing information in a form other than that in which it has been sought, under specified circumstances, and not for refusal."
CPIO UPSC will now provide the information sought in keeping with that decision within fifteen working days of the date of issue of this Decision Notice.
With regard to Point 15, what the appellant has asked for is only the number of OBC candidates who were selected for personality test. This has not been asked subject wise but only in terms of the overall vacancies reserved for OBC. We must admit to being at a loss to understand how such disclosure would also disclose the cut off marks. In this also, therefore, the information sought will be provided to appellant by CPIO, UPSC within fifteen working days of the date of issue of this Decision Notice.
With this the appeal is allowed in part. There will be no costs. Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.3.2009 Authenticated 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.
(Pankaj Shreyaskar) Joint Registrar 4.3.2009 7