Allahabad High Court
Priyanka And 4 Others vs State Of U.P. And Another on 7 August, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 8057 of 2019 Petitioner :- Priyanka And 4 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shivam Yadav,Nitesh Kumar Singh Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Ashwani Kumar Mishra,J.
Petitioners' grievance has been noticed by this Court in its order dated 31.7.2019, which is reproduced hereunder:-
"Grievance is that the final answer key on the basis of which candidates have been selected till date has not been published, nor the same has been furnished to the petitioners. Reliance has placed upon a judgment of the Apex Court in Union Public Service Commission and others Vs. Angesh Kumar and others 2018 (4) SCC 530 to submit that after the recruitment has been formalized, there ought not to be any difficulty in furnishing the final answer key.
Sri M.N. Singh, learned counsel appearing for the respondent may obtain instructions or to file an affidavit by the next date fixed.
Put up in the additional cause list, once again, on 7th August 2019."
A counter affidavit has been filed by the Commission. Attention of the Court has been invited to paragraph nos. 9 to 11 which are reproduced:-
"9. That at this stage it is relevant to be submitted before this Hon'ble Court that such examinations on the basis of the marks whereof final merit-list is to be prepared or such examination, marks whereof are to be added with the marks awarded in the interview for declaration of final result, the key-answers in reference to objective type question-papers are not published on the website inasmuch as the same would necessarily amount to disclosure of the marks in the written examination to the candidates prior to declaration of final result which is bound to affect the sanctity and purity of the examination procedure.
10. That it may, however, be clarified at this stage that the key-answers with respect to such examination is placed for consideration before 2 separate expert-committees and it is on the basis of their opinion that the evaluation process is undertaken. In the eventuality of their being any difference of opinion between the two expert-committee, the same is placed for consideration before a third expert-committee consisting of different members as were empanelled in the previous 2 expert-committees and it is on the basis of such final opinion provided by the third expert- committee that answer-scripts are evaluated.
11. That accordingly the key-answers are not made available in public domain and no objection in relation thereto is invited by the Commission. Any deviation from the aforesaid fool-proof procedure would affect the sanctity and purity of the examination and it is in view of such fact that the key-answers with respect to examination in question have not been uploaded on the website of the Commission."
Sri M.N. Singh, learned counsel appearing for the respondents submits that sanctity of the examination process itself would be interfered with in case the correct answer sheet is declared or published on the website even during the continuance of the examination itself.
The sanctity of the recruitment process is of almost importance. While some play in the joints would have to be allowed to recruitment agency but the Commission cannot be permitted to withhold relevant information which may be necessary in order to determine whether a fair and transparent recruitment process has been followed. The issue in that regard has been examined by the Apex Court in Union Public Service Commission and another Vs. Angesh Kumar and others. Paragraph nos. 7 to 9 of the report would be worth noticing at this stage and are reproduced:-
"(7) The problems in showing evaluated answer sheets in the UPSC Civil Services Examination are recorded in Prashant Ramesh Chakkarwar v. UPSC1. From the counter affidavit in the said case, following extract was referred to :
"(B) Problems in showing evaluated answer books to candidates.?(i) Final awards subsume earlier stages of evaluation. Disclosing answer books would reveal intermediate stages too, including the so-called 'raw marks' which would have negative implications for the integrity of the examination system, as detailed in Section (C) below.
(ii) The evaluation process involves several stages. Awards assigned initially by an examiner can be struck out and revised due to (a) totalling mistakes, portions unevaluated, extra attempts (beyond prescribed number) being later corrected as a result of clerical scrutiny, (b) The examiner changing his own awards during the course of evaluation either because he/she marked it differently initially due to an inadvertent error or because he/she corrected himself/herself to be more in conformity with the accepted standards, after discussion with Head Examiner/colleague examiners, (c) Initial awards of the Additional Examiner being revised by the Head Examiner during the latter's check of the former's work, (d) the Additional Examiner's work having been found erratic by the Head Examiner, been rechecked entirely by another examiner, with or without the Head 1 (2013) 12 SCC 489 Examiner again rechecking this work.
(iii) The corrections made in the answer book would likely arouse doubt and perhaps even suspicion in the candidate's mind. Where such corrections lead to a lowering of earlier awards, this would not only breed representations/grievances, but would likely lead to litigation. In the only evaluated answer book that has so far been shown to a candidate (Shri Gaurav Gupta in WP No. 3683 of 2012 in Gaurav Gupta v. UPSC dated 6.7.2012(Del.)) on the orders of the High Court, Delhi and that too, with the marks assigned masked; the candidate has nevertheless filed a fresh WP alleging improper evaluation.
(iv) As relative merit and not absolute merit is the criterion here (unlike academic examinations), a feeling of the initial marks/revision made being considered harsh when looking at the particular answer script in isolation could arise without appreciating that similar standards have been applied to all others in the field. Non-appreciation of this would lead to erosion of faith and credibility in the system and challenges to the integrity of the system, including through litigation.
(v) With the disclosure of evaluated answer books, the danger of coaching institutes collecting copies of these from candidates (after perhaps encouraging/inducing them to apply for copies of their answer books under the RTI Act) is real, with all its attendant implications.
(vi) With disclosure of answer books to candidates, it is likely that at least some of the relevant examiners also get access to these. Their possible resentment at their initial awards (that they would probably recognise from the fictitious code numbers and/or their markings, especially for low-candidature subjects) having been superseded (either due to inter-examiner or inter-subject moderation) would lead to bad blood between Additional Examiners and the Head Examiner on the one hand, and between examiners and the Commission, on the other hand. The free and frank manner in which Head Examiners, for instance, review the work of their colleague Additional Examiners, would likely be impacted. Quality of assessment standards would suffer.
(vii) Some of the optional papers have very low candidature (sometimes only one), especially the literature papers. Even if all examiners' initials are masked (which too is difficult logistically, as each answer book has several pages, and examiners often record their initials and comments on several pages with revisions/corrections, where done, adding to the size of the problem), the way marks are awarded could itself be a give away in revealing the examiner's identity. If the masking falters at any stage, then the examiner's identity is pitilessly exposed. The 'catchment area' of candidates and examiners in some of these low-candidature papers is known to be limited. Any such possibility of the examiner's identity getting revealed in such a high-stakes examination would have serious implications, both for the integrity and fairness of the examination system and for the security and safety of the examiner. The matter is compounded by the fact that we have publicly stated in different contexts earlier that the paper-setter is also generally the Head Examiner.
(viii) UPSC is now able to get some of the best teachers and scholars in the country to be associated in its evaluation work. An important reason for this is no doubt the assurance of their anonymity, for which the Commission goes to great lengths. Once disclosure of answer books starts and the inevitable challenges (including litigation) from disappointed candidates starts, it is only a matter of time before these examiners who would be called upon to explain their assessment/award, decline to accept further assignments from the Commission. A resultant corollary would be that examiners who then accept this assignment would be sorely tempted to play safe in their marking, neither awarding outstanding marks nor very low marks, even where these are deserved. Mediocrity would reign supreme and not only the prestige, but the very integrity of the system would be compromised markedly."
(8) This Court thereafter approved the method of moderation adopted by the UPSC relying upon earlier judgment in Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720 and U.P. Public Service Commission v. Subhash Chandra Dixit, (2003) 12 SCC.
(9) Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing."
Once the examination process itself is over and the Commission has already made recommendation to the State Government for selection, there would be no valid reason for the Commission to withhold publication of answer key on its website. The mere fact that question might be raised with regard to correctness of the recruitment process would not be a ground to deny relevant information to the candidates. Even otherwise it is the sanctity of the recruitment process which has to be respected and not the convenience of the Commission.
In that view of the matter, this writ petition stands disposed of by directing the Commission to upload answer key on its website within a period of two weeks from the date of presentation of certified copy of this order.
Order Date :- 7.8.2019 n.u.