Central Information Commission
Ms. Shipra Sud vs Union Public Service Commission on 27 March, 2012
Central Information Commission, New Delhi
File No.CIC/SM/A/2012/000135
Right to Information Act 2005 Under Section (19)
Date of Hearing 6.3.2012
Date of Order 27.3.2012
Name of the Applicant Ms. Shipra Sud
Name of the Public Authority CPIO, Union Public Service
commission
Brief Facts of the Case
1. The Case involves giving information to the RTI Applicant about the Civil Services Preliminary Exams held in May/June 2011. The Commission has taken cognisance of the Supreme Court order in UPSC vs. Shiv Shambu (SLP 23250/2008) and the order dated 30/09/2011 in Ajay Kumar Mishra vs. UPSC (SLP (Civil) 32443/2010) which allows the Delhi High Court decision in LPA No. 313/2007 to hold the field. The Delhi High Court in the said case had held: "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 Equipercentile 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 cutoff 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 cutoff 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 cutoff 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 cutoff 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."
2. The Delhi high Court further held "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 cutoff 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."
3. Finally Division Bench of the Delhi High Court held "19.....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 wellfounded."
4. The Law was further explicated in Ajay Kumar Mishra and Anr. vs. UPSC and Anr. supra in which it was held by the Supreme Court "The grievance of the Petitioners is that despite writing to the UPSC within 8 days of the declaration of the results of the Civil Services (Preliminary) Examinations, 2010 seeking to know the marks awarded to each of them as well as the cut off marks, the intimation from the Central Public Information Officer (CPIO), UPSC declining the information was received only recently. The justification shown for not approaching the Appellate Authority of the UPSC and thereafter the Central Information Commission (CIC), but directly filing this writ petition, is that the Civil Services (Main) Examinations 2010 (?Mains?) are to be held on 29th October 2010, and therefore there is not much time left. The Petitioners expectation is that once the marks awarded to each of them in the Prelims and the cutoff marks are disclosed, they will be able to demonstrate that they have been wrongly kept out of appearing in the Mains. Reliance is placed on the decision of the learned Single Judge of this Court in Union Public Services Commission v. Central Information Commission (decision dated 17th April 2007 in W.P (C) No. 17583 of 2006) and the decision of the Division Bench of this Court in Union Public Service Commission v. Shiv Shambu (decision dated 3rd September 2008 in LPA No. 313 of 2007) affirming the decision of the learned Single Judge.
3. Appearing on advance notice, Mr. Naresh Kaushik learned counsel for the Union Public Service Commission (?UPSC?) drew the attention of this Court to the orders passed by the Supreme Court in Special Leave to Appeal (Civil) No. 23250 of 2008 (Union Public Service Commission v. Shiv Shambu). By an order dated 12th December 2008 the Supreme Court stayed the order dated 3rd September 2008 of the Division Bench of this Court for a period of three months and that stay has continued thereafter. The SLP was listed last on 1st October 2010 and has been directed to be listed next on 11th November 2010.
4. This Court finds that two of the issues decided by this Court in Union Public Service Commission v. Shiv Shambu involved the disclosure of marks awarded to each of the applicants in the Prelims for the year 2006, the cutoff marks and the scaling system. Therefore, two of the prayers in the present petition are similar to the prayers in the above case, the decision in which is pending consideration before the Supreme Court.
5. In the considered view of this Court, as long as the Supreme Court does not decide the above issues, and there is a stay granted of the judgment of the Division Bench of this Court, which should be understood as a stay of the order of the CIC in that case, this writ petition cannot be entertained."
5. The present position is covered by the Supreme Court order dated 30/09/2011 wherein Supreme Court has observed that "In case, in future the UPSC (Respondent No. 1) is faced with any difficulty with regard to supplying information in relation to any examinations, the process of which remains incomplete, it will be open to it to seek appropriate remedies in accordance with the law"
Decision Notice
6. Central Information Commission has given innumerable decisions on the disclosure of cut off marks to the candidates appearing in Civil Services Exams. Some of them are
i) Shiv Sambu & others (CIC/MA/A/2006/00793 dated 30 November 2006)
ii) Ravi Jindal (CIC/MA/C/2006/00149 dated 19 January 2007)
iii) Ravi Jindal (CIC/WB/A/2007/00694 dated 27 October 2008)
iv) Prashant K Sahi (CIC/WB/A/2009/000809 dated 11 January 2011)
v) Ashish Gupta (CIC/WB/A/2010/000880SM Dated 4/2/2011)
7. In this case, the UPSC has filed an affidavit. They have argued that the CSE is an integrated threetier examination system in which each tier leads to the next stage and the examination is said to be complete only when all the three tiers are completed. They have further argued that the disclosure of information about the marks in the Preliminary Examination has the potential to derail the smooth conduct of the further tiers of examination as the information can be used to cause frivolous complaints and objections including court cases. Therefore, the UPSC is of the view that any information regarding the CSE must be given only after the completion of the entire threetier system of examination process and not at any immediate stage.
8. We, however, find it difficult to agree with this line of argument. While we admit that the CSE is a threetier examination system, we do not agree with the argument that the preliminary examination in any way contributes to the success or failure of a candidate except by way of either eliminating him or allowing him to take the next stage of the examination, namely, the Mains. In other words, the preliminary examination is a stand alone test to eliminate a large number of candidates leaving a small number of successful candidates to take the Mains. The results of the preliminary examination do not contribute in any other manner to the final success or failure of a candidate in the further CSE.
9. The argument of the UPSC that the disclosure of marks might derail the examination system is also not very convincing. Even if the candidates get to know about their marks in the preliminary examination, there is no way they can derail the remaining two tiers or cause obstruction in holding the Mains. On the other hand, the disclosure of the marks after the preliminary examination would help candidates to make an honest assessment of their performance so that they can prepare better for the next preliminary examination. If these marks are not disclosed immediately after the preliminary examination is over and the candidates are made to wait for nearly one year before accessing these marks, they would loose a whole year in the process and would not know why they performed the way they did. Therefore, in our opinion, these marks should be disclosed.
10. Delhi High Court in LPA No. 817/2010 took the similar view and held "Those who are knocked out before the interview even and did not have a chance to compete any further, are definitely entitled to know that they have not been knocked out arbitrarily to deprive them from even competing any further." This is also the practice UPSC follows at the stage of Mains examination as UPSC uploads the marks sheet of the unsuccessful candidates on its website within 15 days of declaration of results of Mains Examination based on the factual matrix that qua the unsuccessful candidate the examination process has come to an end.
11. The synchronised reading of the Supreme Court order, Delhi High Court order and the decision of Full bench of the CIC quoted above leads us to conclude that the RTI applicant is to be given the following information A. The copies of her OMR Sheets for Paper 1 and Paper II in consonance with Delhi High Court decision in Writ Petition (Civil) 747/2011 and LPA 817/2010 B. Sectional cutoff in both papers, if any C. Cutoff for General category in Paper 1 and Paper II separately as per Delhi High Court order in LPA 313/2007 which holds the field after the decision of the Supreme Court in Special Leave to Appeal (Civil) Nos. 23250/2008 and 32443/2010.
12. The Examination Process qua the RTI Applicant Ms. Shipra Sud has come to an end once the Mains Examination for 2011 has begun and she has not been found fit to continue in the 3 stage selection process. We do not agree with the UPSC that disclosure of the details of marks and the answer sheet (OMR sheet) could potentially stall the entire examination process. The anticipation that candidates can, armed with such information, approach higher courts and obtain stay of the entire examination process or get orders to include themselves is farfetched. This would amount to fearing that higher courts would not apply their minds when confronted with pleas from candidates and would mechanically pass orders derailing the examination process or confer benefits on undeserving candidates.
13. With these directions, the appeal is allowed. The copies of the order may be given to the parties free of cost.
Satyananda Mishra Chief Information Commissioner Authenticated true Copies (Vijay Bhalla) Deputy Registrar