Central Information Commission
Dr. Prashant Ramesh Chakkarwar vs Union Public Service Commission on 18 April, 2011
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2010/000332 & 523-SM dated 10.01.2011
Right to Information Act, 2005 - Section 18 &19
PARTIES TO THE CASE:
Appellant : Dr. Prashant Ramesh Chakkarwar,
S/o. Shri. Ramesh D Chakkarwar,
Ramesh Sadan Vasant Nagar, Umarkhed,
Distt - Yavatmal, Maharastra.
Public Authority : CPIO & Appellate Authority,
Union Public Service Commission,
(Sangh Lok Seva Ayog), Dholpur House,
Shahjahan Road, New Delhi - 110 069.
Date of Decision : 18.04.2011
Date of Decision : 07.02.2011
FACTS OF THE CASE:
1. This appeal/complaint by Dr. Prashant Ramesh Chakkarwar is against the orders of the Appellate Authority, UPSC Dated 17.03.2010 as well as reply Dated 06.01.2010. The Appellant had sought certain information in his Application dated 03.10.2009 and the Under Secretary, UPSC had denied the same in his letter dated 27.11.2009 and affirmed by Joint Secretary, UPSC on 06.01.2010. We treat this as the stand of the UPSC in the matter as the CPIO has verbatim replied on 12.01.2010 in response to similarly worded RTI Application dated 10.12.2009. The UPSC in the present hearing did not dispute their stand and went by the response of the Under Secretary, UPSC as well as the CPIO/FAA.
INFORMATION SOUGHT BY THE APPELLANT:
2. The Following information was sought in the complaint as well as in the Appeal:-
a). Whether the marks obtained to me in Civil Services (Main) examination 2004, 2005, 2006, 2008 are my original marks or scaled marks ( My Roll No. in Civil Services (Main) Exams in respective years are as under:-
2004 - 007329 1 2005 - 002005 2006 - 036755 2008 - 146155
b). * If scaling is applied, then to which subjects it is applied.
* What is my original score in those scaled subjects?
* Whether scaling is applied to all candidates (Pleas give detail data for my all four attempts).
c). Whether the marks obtained to me in Essay, General Studies-I, General Studies-II are my original marks or scaled marks. If they are scaled marks, then what are my original scores. (Please give detail data for my all four attempts).
d). Please provide me the Xerox of my answer sheet for all the subjects for my 2006 and 2008 attempts.
e) Please give details of scaling / moderation system.
f) Whether the consent was taken from Examiner as well as the Head Examiner to apply scaling in my case, in all subjects offered by me in all four attempts.
g). * Please provide the details of marks awarded by each examiner and the head examiner in all subjects offered by me in all my four attempts.
* Please provide the details of marks awarded by each Examiner and Head Examiner to me and other candidates. The average marks awarded by them, total number of answer-sheets checked by each examiner year-wise, and moderation applied in each case, their range of marks average of each examiner after application of moderation/scaling, the comparison with marks awarded by the examiner before and after application of scaling in various subjects offered by me in all my four attempts. The total number of candidates of each examiner who got through to the final selection list in each year, the name and designation of Examiners of various subjects offered by me.
DECISION NOTICE:
23. We have carefully considered the written submissions of both the Parties in the present case. We are of the view that the respondents, UPSC, had not treated the application of the appellant dated 3.10.2009 as an RTI Application due to non-
payment of fee in the prescribed mode of payment. Therefore, we have treated this as 'Complaint' though Information Seeker has worded this as 'Second Appeal'. The UPSC represented by its CPIO adopts the reply given by its Under Secretary on 27th November 2009. Therefore, the present order takes into account the order of the CPIO dated 12.01.2010 as well as the order of the Appellate Authority dated 17.03.2010 which is in response to the RTI Application dated 10.12.2009.
4. Neither the UPSC nor the Complainant has divulged to us that the Complainant had filed the WP (C) No.6586/2010 in the Hon'ble Delhi HC after getting an adverse order from the Principal Bench of the CAT and the matter was heard and decided by a Division Bench of Delhi High Court on 05.10.2010. The subject- matter of the Writ Petition was the same as what is before us and the High Court has already adjudicated upon the same. The Delhi HC dismissed the Petition in its judgment Prashant Ramesh Chakkarwar and Anr. Vs. Union Public Service Commission and Anr. [173 (2010) DLT 148]. The relevant excerpts from that judgment are as follows:
"28. [...] In view of such legal position, we find no merit whatsoever in the submission advanced by the Learned Counsel that the method of moderation of marks applied by UPSC in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination is unreasonable and arbitrary and thus violative of Articles 14 and 16 of Constitution of India.
29. With respect to the second submission advanced by the learned Counsel, we note that UPSC had stated on oath before Supreme Court in Sanjay Singh's case (supra) that it is not applying the method of scaling of marks in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination. (See para 3 of the counter affidavit filed by UPSC in the said matter). A perusal of the report relied upon by the petitioners merely brings out that linear scaling of marks is one of the methods of statistical moderation and is not the same as linear scaling as alleged by the petitioners. It may be highlighted that no argument can be advanced that scaling, ipso facto, results in imperfection. Scaling as a concept has various hues for example, linear scaling and equi-percentile scaling. Each has its own indices and formula. In a given situation, the desired result may fail but only at the extremities of the 3 spectrum (as was discovered by Supreme Court in Sanjay Singh's case (supra). Thus, without showing to the court the scaling formula applied and indices used by teachers in UK to achieve common standards of assessment of marks, the deficiency found in applying scaling in UK cannot be a ground to question moderation, applying linear scaling by UPSC.
30. The matter can also be looked at from another angle. In Kamlesh Haribhai's case, Gujarat High Court noted with approval that while applying method of moderation of marks in evaluating the answer sheets of the candidates pertaining to Civil Services (Main) Examination, 'the Head Examiner does statistical moderation of marks by linear transformation, wherever considered necessary'. As already noted hereinabove, the decision of Gujarat High Court in Kamlesh Haribhai's case (supra) has been impliedly approved by Supreme Court in Subhash Chandra's case (supra) and that the said aspect of Subhash Chandra's case has not been overruled in Sanjay Singh's case (supra).
31. With respect to third submission, we note that UPSC has been continuously conducting Civil Services Examination every year starting from 1949 to till date. The petitioners had pointed out ten incidents of detection of irregularities in Civil Services Examination conducted by UPSC over the past "seven decades". A few stray incidents of irregularities detected in the Civil Services Examination conducted in the past seven decades do not vitiate the sanctity of Civil Services Examination. No materials whatsoever has been placed on record by the petitioners in the present case suggesting that there were irregularities in the Civil Services Examinations conducted by UPSC in the year 2007-2009.
32. In this regards, it is also significant to note that the petitioners averred in the applications filed by them before the Tribunal that 'lower marks of the Petitioners may be due to the manner of evaluation applied by the Respondent for evaluation of Answer-Books of Main's Examination'. The aforesaid averment contained in the applications in question brings out the allegations made by the petitioners against UPSC in respect of manner of conduct of Civil Services Examination and method of evaluation of answer-sheets of the candidates are based on surmises and conjectures and that the petitioners were throwing darts in dark with a hope that one of the darts would hit the bull's eye.
35. Before concluding, we proceed to note a significant aspect of the present matters. It is most relevant to note that the petitioners in Writ Petitions Nos. 6586, 6590, 6592 and 6602 of 2010 approached the Tribunal after a period of more than one year from the date of declaration of results in respect of Civil Services Examinations in question. Till the time the petitioners in question approached the Tribunal, the selections and appointments in pursuance of declaration of results had already been made. The petitioners in question did not implead as respondents, the persons who already stood appointed and were likely to be adversely affected by the success of the petitioners before the Tribunal. It does not stand to reason to upset the appointments made much 4 prior to the date of filing of applications by the petitioners in question before the Tribunal. The delay in approaching the Tribunal by the petitioners in question was most fatal to the case set up by them before the Tribunal.
36. In view of above discussion, we find no merit in the above captioned petitions. The same are hereby dismissed."
5. The CPIO of the UPSC takes the help of the Supreme Court decision in Sanjay Singh Vs. UPPSC (CWP No. 165/2005) holding " Moderation, when employed by the examining authority becomes part of the process of evaluation and marks awarded on moderation becomes the final marks of the candidate." Therefore, the Raw marks do not subsist at the end of the evaluation process and it is only the marks that are awarded at the end of the evaluation process, and that is reflected in the notified results, that can be said to subsist as information under the Right to Information Act 2005. This position is same for the candidate as well as the UPSC. We rely upon this position as the Supreme Court has held in Khanapuram Gandiah Vs. Administrative Officers & others "The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him." The information available to the Appellant as well as to the Public Authority is the marks awarded at the end of evaluation process. Anything penultimate to this is not 'Information' as defined in Section 2 (f) of the RTI Act, 2005. In case the Public Authority can access the 'raw marks' awarded to the candidate, then it becomes 'Information' in the hands of Public Authority which is liable to be disclosed to the Information Seeker.
6. The CIC has already decided the present issue on a similar line of reasoning through its Full Bench in CIC/OK/A/2006/00266/00058/00066/00315 and CIC/WB/A/2006/00469 wherein it was held that:
"38. There are various types of examinations conducted by public authorities which could be either public or limited examinations. Examinations are conducted for various purposes viz. (i) for admission to educational institutions, (ii) for selection and appointment to a public office, (iii) for promotion to higher classes in educational institutions or in employment etc. There are institutions like UPSC, Staff Selection Commission, CBSE etc, the main function of which is only to conduct examinations. Many public authorities, as those in the present appeals 5 like Jal Board, Railways, Lok Saba Secretariat, DDA, whose main function is not of conducting examinations, do so either to recruit fresh candidates for jobs or for promotion of existing staff. Thus these public authorities conduct both public as well as departmental examinations.
39. In regard to public examinations conducted by institutions established by the Constitution like UPSC or institutions established by any enactment by the Parliament or Rules made thereunder like CBSE, Staff Selection Commission, Universities., etc, the function of which is mainly to conduct examinations and which have an established system as fool-proof as that can be, and which, by their own rules or regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice and on the basis of the rationale followed by the Supreme Court in the above two cases, we would like to put at rest the matter of disclosure of answer sheets. We therefore decide that in such cases, a citizen cannot seek disclosure of the evaluated answer sheets under the RTI Act, 2005."
7. It needs to be clarified here that the case of Dr. Ravi Jindal vs National Board Of Examinations [CIC/AD/A/2009/001493] dated 22nd December, 2009 and [CIC/AD/C/2009/000968] dated November 10, 2009 on which the appellant is relying is of no relevance to the present case as it did not deal with the specific subject-matter, that is, pertaining to the conducting of the UPSC Civil Services examination. Hence, any contention to that regard is hereby rejected.
8. Now, the only contention remaining before us is with respect to the information listed under Para 3(iii)(g) of the RTI Application dated 03.10.2009. CPIO vide its order dated 27.11.2009 has replied it in the following words:
"There is a clear and substantial fiduciary relationship between the commission and the examiners it appoints. These examiners evaluate the scripts freely, fairly and frankly which would be jeopardized if details as sought were disclosed/shared. Thus, exemption under section 8(1)(e) is invoked. Besides, if the details of examiners were made known, it could constitute a possible threat to their safety and security [exemption under section 8(1)(g)] besides being an unwarranted invasion of their privacy [exemption under section 8(1)(j). Revealing the marks of the other candidates is not only third party information under the RTI Act 2005, but is also an unwarranted invasion of privacy of these candidates which is exempted under section 8(1)(j)."
The reply of the CPIO/ Under Secretary is as per the correct understanding of the RTI Act. The information/details sought by the appellant are not 6 maintained/compiled by the Respondent Public Authority and would have to be generated especially for answering the query of the Appellant, which is not envisaged under the RTI Act, 2005, as this is not 'information' under the scope of section 2(f) of the Act. Where examiner related information is maintained, it cannot be furnished as this would directly violate the fiduciary nature of the relationship between the commission and its examiners and the exemption under section 8(1)(e) is applicable here. Severability principle, as referred to by the Appellant cannot be applied here as the attempt to laboriously block the references to identities would lead to giving vague information which will open to various interpretations and predictions. Any inadvertent oversight in deleting/blocking such revelation of identity could constitute a potential threat to the safety and security of the concerned individuals (examiners/officials), thus section 8(1)(g) is also attracted here.
9. We modify the order of the CPIO, the First Appellate Authority as well as the Under Secretary Shri D.B.Das to the extent that 'raw marks' will be disclosed to the Appellant in case it is being maintained by the Public Authority as discussed in para 5 of the order. In case the Public Authority is not maintaining the 'raw marks', then a sworn affidavit will be directly sent to the Applicant by the CPIO of the Public Authority stating that it does not maintain the 'raw marks' of the candidates after the completion of evaluation process. The directions will be complied with within 30 working days of receipt of the order.
(Satyananda Mishra) Chief Information Commissioner Certified True Copies (Vijay Bhalla) Deputy Registrar 7