Central Administrative Tribunal - Delhi
Aman Gupta vs Union Public Service Commission on 17 April, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1637/2012
Reserved On: 12.04.2013
Pronounced on:17:04.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Aman Gupta
S/o Shri Anil Gupta,
8110,
Pocket XI, Sector-B,
Vasant Kunj,
New Delhi-110070. Applicant
(Applicant in person)
Versus
Union Public Service Commission
Through the Secretary,
Dholpur House,
Shahjahan Road,
New Delhi-11069. ..Respondents
(By Advocate Shri Devesh Singh)
O R D E R
Shri G. George Paracken:
The Applicant in this Original Application is a person with disabilities (visually impaired). He has challenged the final marks given to him in Civil Service Examination (CSE for short) 2010, as held by the Respondent-Union Public Service Commission (UPSC for short) on the ground that in the evaluation of his answer scripts in the said examination, he has been discriminated vis-`-vis the candidates without any disability and thereby he was allotted lower marks than what actually he deserved. He has, therefore, contended that in the said process, he has been denied his fundamental rights of equal opportunity and right to equality.
2. According to the Applicant the impugned evaluation of answer scripts is bad both in law and on facts. First of all, he was neither allotted sufficiently competent scribes nor any visual aids nor any computer to appear in the said examination thereby he was denied the chance to bring forth his potential in full. Further, according to him, he had to go through excessive hardships in having to write the papers himself despite being unable to read questions or see what he was writing. He has also stated that the respondents has no special mechanism to prevent negative bias in the evaluation of answer scripts of visually impaired candidates particularly with reference to their poor handwriting, their inability to use the diagrams adequately and such like inherent inabilities. This is particularly so in the case of non-technical subjects wherein handwriting and diagrams are important factors in getting more marks but the evaluation of scripts are not made taking into consideration of the disability being suffered by visually impaired persons. Again, by not providing copies of the Applicants answer books, despite the judgment of the Supreme Court in this regard in C.B.S.E. Vs. Aditya Bandopadhyay in Civil Appeal No.6454/2011, the respondents have demonstrated, prima facie, its mala fide behaviour in relation to the evaluation of his answer scripts. The above lack of provision violates the fundamental rights of the Applicant, as provided in Articles 14, 16(1) and 21 of the Constitution of India. Therefore, according to him, the marks allotted to him in CET 2010 was in arbitrary, discriminatory and unjust manner. He has, therefore, sought a direction to get all his answer scripts evaluated by Experts after giving them special guidelines for evaluating answer scripts of visually impaired persons so as to provide him a level playing field. He has also sought consequential direction to the Respondents to rectify the marks awarded to him in the aforesaid examination and also to revise his rank upwards in the merit list of candidates having qualified in the said examination.
3. The Applicant has further submitted that during the pendency of the aforesaid OA, the Ministry of Social Justice & Empowerment, Department of Disability Affairs have issued Guidelines for conducting written examination for Persons with Disabilities vide F.No.16-110/2003-DD.III dated 26.02.2013 which reads as under:-.
F.No. 16-110/2003-DD.III Government of India Ministry of Social Justice & Empowerment Department of Disability Affairs *** Shastri Bhawan, New Delhi Dated: 26th February, 2013 Office Memorandum
Subject: Guidelines for conducting written examination for Persons with Disabilities.
The undersigned is directed to say that Chief Commissioner of Persons with Disabilities (CCPD) in its order dated 23.11.2012 in case No. 3929/2007 (in the matter of Shri Gopal Sisodia, Indian Association of the Blind Vs. State Bank of India & Others) and in case No.65/1041/12-13 ( in the matter of Score Foundation Vs. Department of Disability Affairs) had directed this Ministry to circulate guidelines for the purpose of conducting written examination for persons with disabilities for compliance by all concerned. In compliance of the above order, this Ministry hereby lays down the following uniform and comprehensive guidelines for conducting examination for the persons with disabilities as recommended by CCPD:-
I. There should be a uniform and comprehensive policy across the country for persons with disabilities for written examination taking into account improvement in technology and new avenues opened to the persons with disabilities providing a level playing field. Policy should also have flexibility to accommodate the specific needs on case-to-case basis.
II. There is no need for fixing separate criteria for regular and competitive examinations.
III. The facility of Scribe/Reader/Lab Assistant should be allowed to any person who has disability of 40% or more if so desired by the person.
IV. The candidate should have the discretion of opting for his own scribe/reader/lab assistant or request the Examination Body for the same. The examining body may also identify the scribe/ reader/lab assistant to make panels at the District/Division/ State level as per the requirements of the examination. In such instances the candidates should be allowed to meet the scribe a day before the examination so that the candidates get a chance to check and verify whether the scribe is suitable or not.
V. Criteria like educational qualification, marks scored, age or other such restrictions for the scribe/reader/lab assistant should not be fixed. Instead, the invigilation system should be strengthened, so that the candidates using scribe/reader/lab assistant do not indulge in malpractices like copying and cheating during the examination.
VI. There should also be flexibility in accommodating any change in scribe/reader/lab assistant in case of emergency. The candidates should also be allowed to take more than one scribe/reader for writing different papers especially for languages.
VII. Persons with disabilities should be given the option of choosing the mode for taking the examinations i.e. in Braille or in the computer or in large print or even by recording the answers as the examining bodies can easily make use of technology to convert question paper in large prints, e-text, or Braille and can also convert Braille text in English or regional languages.
VIII. The candidates should be allowed to check the computer system one day in advance so that the problems, if any in the software/system could be rectified.
IX. The procedure of availing the facility of scribe should be simplified and the necessary details should be recorded at the time of filling up of the forms. Thereafter, the examining body should ensure availability of question papers in the format opted by the candidate as well as suitable seating arrangement for giving examination.
X. The disability certificate issued by the competent medical authority at any place should be accepted across the country.
XI. The word extra time or additional time that is being currently used should be changed to compensatory time and the same should not be less than 20 minutes per hour of examination for persons who are making use of scribe/reader/lab assistant. All the candidates with disability not availing the facility of scribe may be allowed additional time of minimum of one hour for examination of 3 hours duration which could further be increased on case to case basis.
XII. The candidates should be allowed to use assistive devices like talking calculator (in cases where calculators are allowed for giving exams), tailor frame, Braille slate, abacus, geometry kit, Braille measuring tape and augmentative communication devices like communication chart and electronic devices.
XIII. Proper seating arrangement (preferably on the ground floor) should be made prior to the commencement of examination to avoid confusion or distraction during the day of the exam. The time of giving the question papers should be marked accurately and timely supply of supplementary papers should be ensured.
XIV. The examining body should also provide reading material in Braille or E-Text or on computers having suitable screen reading softwares for open book examination. Similarly online examination should be in accessible format i.e. websites, question papers and all other study material should be accessible as per the international standards laid down in this regard.
XV. Alternative objective questions in lieu of descriptive questions should be provided for Hearing-Impaired persons, in addition to the existing policy of giving alternative questions in lieu of questions requiring visual inputs, for persons with Visual Impairment.
2. It is requested to ensure that the above guidelines are scrupulously followed while conducting examination for persons with disabilities. All the recruitment agencies, Academics/Examination Bodies etc. under your administrative control may be advised appropriately to ensure compliance of implementing these guidelines. Action taken in this regard may be intimated to this office.
3. The above guidelines are issued with the approval of Honble Minister (Social Justice & Empowerment).
Yours faithfully, Sd/-
(Jagdish Kumar) Deputy Secretary to the Govt. of India Copy to : CCPD, Sarojini Bhawan, Bhagwan Dass Road,New Delhi with reference to order dated 23.11.2012 in case No. 3929/2007 and in case No.65/1041/12-13.
4. According to the Applicant the guidelines for conducting the written examination for persons with disabilities contained in the aforesaid Office Memorandum address many of his grievances made in this OA but unless they are given effect to and put in practice, they will do any good for the physically impaired persons and still they will be suffering inequality in the matter.
5. The Respondent-UPSC in its reply has submitted that the Applicants answer sheets in the CSE 2010 have already been weeded out as per the Record Retention Schedule maintained by it barring cases where the said Schedule prescribes a longer retention period. However, it has denied that the Applicant has been discriminated against due to his visual impairment and has been allotted lower marks than those actually he deserved. It has also denied the allegation of the Applicant that he has been denied equal opportunity and the right to equality in the evaluation of answer sheets. According to it, allowing the facility of scribes to visually challenged candidates appearing for the Civil Services (Main) Examinations and arrange for double the number of scribes vis-`-vis the number of candidates who seek the assistance of scribes. It has further stated that in the event he was not satisfied with the output of the scribe provided to him, nothing precluded him from asking for a change of the scribe, at least insofar as the subsequent papers were concerned.
6. As regards the contention of the Applicant regarding his poor handwriting is concerned, it submitted that in all the nine papers written by him in his own hand, the Respondent-Commission did not penalize him in any manner whatsoever for his handwriting. Further, according to it, the visually challenged candidates, who actually availed of this facility of scribes, were exempted from attempting questions relating to interpretation of statistical data from perusal of graphs, diagrams maps etc. In the event such questions were compulsory, visually challenged candidates were given the option of attempting any other compulsory question in lieu thereof and if all the questions in the paper were compulsory, marks allocated to questions relating to statistical data, interpretation through graph and other diagrams and maps were distributed proportionately to the rest of the questions. Again, according to it, the reasons why copies of the evaluated answer scripts could not be given to the Applicant were elaborated and duly communicated to him on receipt of his RTI application and his first appeal. According to it, the judgment of the Honble Supreme Court in the case of C.B.S.E. Vs. Aditya Bandopadhyay (supra) referred to by the Applicant is not applicable to the facts and circumstances of the instant case. This is so, not only in view of the fact that the Respondent conducts examinations for recruitment purposes (unlike CBSE and Universities that conduct academic examinations) but also due to the reason that the nature and the structure of the examinations and the evaluation methodology followed by the UPSC are different from those being followed by the CBSE and other examining bodies. It has also pointed out that there is a very fine line between maintaining transparency and maintaining confidentiality regarding the core functioning of the Respondent, and, therefore, the same deserves to be exempted from disclosure in the larger public interest. The Respondent conducts examinations for recruitment to most coveted careers under the Central Government and the careers of thousands of candidates are involved. Given this situation, an additional duty is cast upon it to maintain utmost secrecy and confidentiality as regards sensitive information, especially the evaluation process. In the case of Aditya Bandopadhya (supra), the Honble Supreme Court went on to declare that protection of sensitive information is also an important objective of the RTI Act, 2005 as mentioned in the preamble of the Act. This important objective has to be given due importance while going in for transparency and disclosure of information.
7. The Respondent-UPSC has also submitted that the Civil Services (Main) Examination is a highly competitive examination and the subject Experts appointed by the Commission for the purpose of evaluation of answer books are renowned in their respective fields and as such, marks awarded by them are strictly in accordance with the performance of the candidates. Any self assessment made by the Applicant of his own performance in the Civil Services (Main) Examination, 2010 cannot be substituted for the considered assessment of duly associated qualified Examiners. In fact, the Applicants own admission, that he secured higher marks in a technical paper, namely, Commerce and Accountancy, which requires more attention and accuracy as it has several questions dealing with data and numerical figures, (and also the fact that no penalty was imposed on account of poor handwriting), vindicates the stand of the Respondents with regard to evaluation standards. They have denied that the Applicant received lower marks in the non-technical papers due to the existence of a negative bias owning to poor handwriting due to visual impairment and provision of less competent scribes. This contention is baseless and unfair. This is amply borne out by the fact that the Applicants name already figures in the recommended list. In the circumstances, the Applicant cannot selectively claim negative bias only in the subject(s) he has not performed well and be happy with the evaluation standards (and marks awarded) in other subject(s)/interview where he has presumably done well (including relatively more technical papers like Commerce and Accountancy, where strain on the eyesight is arguably more). It has also been submitted that no penalty was imposed by the Respondent in any of the nine papers written by the Applicant in the Civil Services (Main) Examination, 2010 on account of poor handwriting.
8. The Respondent has also stated that the Applicant made a baseless allegation that he was discriminated against owning to unjust evaluation of answer scripts. With regard to Applicants said submission that he has been declared to have secured lower marks than what he actually should have and hence has been declared to have secured a lower rank in the CBSE, the Respondent has submitted that it constituted the Applicants self assessment and it is not reflective of the objective reality as would be seen by his actual performance in the examinations. It further submitted that in the Civil Services Examination, what it endeavours to do is, to determine the relative competence of candidates, unlike academic examinations where absolute merit determines the candidates proficiency, assessment and grading. In a competitive examination (especially where the brightest compete, as in the Civil Services Examinations), it is the relative merit of a candidate with reference to other aspirants that determines his/her position/success in the merit list. Further, it has been pointed out that the Applicant has competed in the category of physically challenged candidates (i.e. the PH category) along with others who were similarly situated and hence it is not even a case where unequals have been treated as equals in the examination process. There are many candidates who do not qualify or get services of their choice and who may fare lower in one or more subjects/papers than in others. It would, therefore, be only natural for many of them to blame the evaluation system of the UPSC. In this regard, the Respondent has relied upon the judgment of the Honble Supreme Court in Paritosh Bhupesh Kumar Setha Vs. Maharashtra Board of Secondary Education AIR 1984 SC 1543 wherein it has been held that the principles of natural justice cannot be unreasonably extended to such an extent that a candidate in public examination can ask for evaluation to be to his entire satisfaction. The Apex Court has further stated in no certain terms that the result of Public Examinations should have some finality, something that would be possible if re-evaluation was to be accepted in such competitive examinations.
9. We have heard Applicant in person and the learned counsel for the Respondents, Shri Devesh Singh. In our view this Application is basically in the nature of Public Interest Litigation. In any case, the relief sought by the Applicant cannot be allowed as the Respondents-UPSC has already destroyed the answer sheets as stated by them in the reply. Moreover, the Applicant himself has submitted that he is satisfied to a great extent by the guidelines issued by the Ministry of Social Justice & Empowerment, Department of Disability Affairs during the pendency of this OA for conducting written examination for Persons with Disabilities vide F.No.16-110/2003-DD.III dated 26.02.2013 which has been reproduced elsewhere in this order.
10. We, in the above facts and circumstances of the case dismiss this case. However, before we part with this order, we would say that it is nobodys case that there is no scope for any further improvement in conducting written examination for persons with disabilities. Introducing innovative methods is a continuing process. Issuance of the Guidelines for conducting written examination for Persons with Disabilities by the Ministry of Social Justice and Empowerment, Department of Disability Affairs vide letter No.16-110/23-DD.III dated 26.02.2013 is an important step forward in this matter. It shall be the endeavour of the Respondent-UPSC and other recruiting agencies do put them in practice so that the actual benefits would reach the beneficiaries. We, therefore, direct the Registry to send a copy of this order to the Chairman, UPSC and also to the Secretary, Ministry of Social Justice & Empowerment, Department of Disability Affairs, Government of India for taking appropriate further actions in the matter which are deemed fit and proper in the interest of disabled candidates.
11. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh