Central Information Commission
Sh. Shiv Kumar Patel vs Union Public Service Commission (Upsc) on 19 November, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00425 dated 4.4.2007
Right to Information Act 2005 - Section 19
Appellant - Sh. Shiv Kumar Patel,
Respondent - Union Public Service Commission (UPSC)
Facts:
In his application of 27.12.06 Shri Shiv Kumar Patel of Gorakhpur (U.P.) applied to the UPSC New Delhi seeking the following information:
"It is, therefore, requested that copy of the rules/directions applicable on scaling pattern in Civil Services Examination 2006 - both Entrance & Main Exams, may kindly be supplied to the appellant and it may also be informed that a candidate who has already appeared twice under Backward class, and whose parents income has increased so as to bring then under creamy layer, will such a candidate of initially backward class, be entitled to appear 4 times or 7 times?"
To this he received a response from CPIO Shri V. P. Singh, Jt. Secretary dated 25.1.07 as follows:
"Information sought on above point (a) cannot be provided for the present, as the issue is under consideration of Hon'ble Delhi High Court.
With regard to point 2 it is informed that the information sought by you cannot be provided because it is the core matter of examination process and, moreover, no public interest is involved in it.
So far as information asked at (c ) is concerned, I would like to draw your attention to Para 3(v) of Notice relating to Civil Services Examination, which is reproduced below:
"All candidates appearing for Civil Services Examination will be provided 4 chances.
However, for Other Backward Classes candidates, who are otherwise eligible, this limit will be 7. This limit will be 1 available only for those, who are otherwise eligible for reservation."
Not satisfied appellant Shri Patel moved his first appeal before Shri Viresh Kumar, Addl. Secretary, UPSC on 2.2.07 upon which he received the following order dated 6.3.07 from Shri Viresh Kumar :
"The information furnished by CPIO on certain grounds does not merit consideration that information has been denied. As such there is no force in the appeal of the appellant.
The stand of the appellant that copy of concerned scaling pattern is provided by the UP Public Service Commission, Allahabad does not hold good in so far as exam conducted by Union Public Service Commission. The appeal of the appellant has been rightly dismissed by CPIO on its merits, which appears to be correct."
His prayer before us in second appeal is as below:
"In view of above facts, it is requested that UPSC Dholpur House, Shahjahan Road, New Delhi may kindly be directed at your level to provide copy of Rules/directions issued in connection with scaling/moderation for Civil Services Entrance Exam 2006 as well as Civil Services Main Exam, 2006. I will always remain obliged for it."
The issue therefore fructifies in a request for disclosure of cut off marks. The appeal was heard on 18.6.08. The following are present:
Appellant Shri S.K. Patel Respondents Shri Prachish Khanna, D.S.(E) & CPIO, UPSC Ms. Amita K. Choudhary, Lawyer Ms. Aditi Gupta, Lawyer In the meantime, we received a request from UPSC dated 17.6.2008 seeking adjournment in view of their Counsel Shri Naresh Kaushik not being available on the due date. Appellant Shri S. K. Patel,, on being contacted over telephone pleaded that he may be heard. Accordingly, he was heard through Video conferencing. His points were basically three:2
1. The question of scaling pattern had gone before High Court of Delhi. Has there been any decision to what has been described as a co-matter and not disclosed by CPIO.
2. The question (b) is a matter of public interest and therefore must be disclosed.
3. Appellate Authority has held that information sought has been provided, while in his view it has not.
The hearing was then adjourned and the appeal was heard once more on 21.7.08. The following are present:
Appellant Shri S. K. Patel Respondents Shri Prachish Khanna, DS(E) & CPIO Shri Naresh Kaushik, Advocate Shri Amita Kalkal Chaudhary, Advocate Learned Counsel for respondents Shri Naresh Kaushik submitted that a case before the High Court has now been heard on 18.7.08. Judgment has been reserved and is expected soon. He also submitted that three questions on which information had been sought by appellant, Shri D.P.Singh Jt. Secy. & CPIO UPSC has already replied indicating that questions at (a) & (b) which related to the scaling in the two phases of the UPSC examination have been withheld. On the third question, the response of the CPIO has been as follows:
"With regard to the information relating to point (c ), I would like to draw your attention to Para 3(iv) of the Civil Services Examination, which is reproduced below:
Candidates sitting in the examination or otherwise eligible will be allowed four chances -
Subject to the condition that candidates belonging to backward classes, otherwise eligible candidates, will be given seven charges. These concession will be admissible only to those, who are otherwise eligible for reservation under such category.3
Appellant Shri Patel who was also present in the hearing reiterated the argument in his previous hearing. On this basis we passed an interim Decision on 21.7.'08 as follows:
We find that the three questions asked, an answer has already been provided to the 3rd question. The first two questions may necessitate pend till vacation of stay order by the Hon'ble High Court. Now, however, since a final order is imminent, its hearing is adjourned to a date to be fixed once the decision of the Hon'ble High Court is announced so that we may dispose of the appeal accordingly. Announced in the hearing.
The appeal was the heard on 13.10.2008. The following are present:
Respondents Shri Satish Dayanandan, Advocate.
Shri B. Bhattacharya, Under Secretary.
Shri S. R. Yadav, SO, UPSC.
Appellant Shri S. K. Patel, although sought to be reached on the telephone, has opted not to be present. In the meantime we have a decision of the High Court of Delhi in LPA No. 313/2007 dated 3.9.08. In this case the court has held as follows:-
"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 cut-off marks and solution keys in respect of individual subject disclosed, we fail to under stand 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.4
18. The central thrust of the argument of Mr. Rao was that armed with the information relating to the 2006 Preliminary Examination, coaching institutes across the country would somehow able to anticipate the subjects in which, if dummy candidates are fielded, there could be a skewing of the results. According to him, the UPSC apprehends that in a particular subject, by getting a large number of dummy candidates to perform badly, the working of scaling candidates opting for that paper. As a corollary it would result in severe prejudice and an unintended disadvantage to a meritorious students opting for other subjects.
19. This argument has only to be stated to be rejected. It is really impossible to imagine how the coaching institutes can somehow anticipate the levels of difficulty in a particular subject in a future examination and plant dummy candidates in that subject or in other subjects. Considering that 4,00.000 students wit for the CSE preliminary examination all over the country every year, this would perhaps require a large scale operation by coaching institutes all over the country and that again presumes that they w8ill somehow correctly predict what the overall performance of the candidates in any particular subject. Then again, this is only a preliminary examination at the end of which a shortlist of candidates 10 to 12 times the number of advertised posts is drawn up for the Main examination. It is nobody a case that the results of the main examination are somehow affected in that process. 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 well founded.
20. We find no merit in this appeal and affirm the impugned order dated 17th April 2007 passed by the learned Single Judge. The stay order granted by this Court on 21st May 2007 is stand vacated."
Shri Naresh Kaushik, learned counsel for respondents in a hearing in a similar case Syed Shabbir Ali vs. UPSC submitted that UPSC had moved a 5 Special Leave to Appeal before the Hon'ble Supreme Court under SLA (Civil) No. 23250/2008-UPSC vs. Shiv Shambu & Ors. The order of the Supreme Court in this matter dated 29.9.2008 is as follows:-
"Issue notice on the special leave petition as well as on the prayer for interim relief. Mr. Sunit Kumar, Learned Counsel, who is on caveat for respondent nos. 1 & 4 and Mr. Prashant Bhushan, learned counsel, who is on caveat for respondent no. 23, accepts notice on behalf of respective respondent. Three week's time is granted for filing counter affidavit. Rejoinder, if any, be filed within two weeks thereafter. List in the middle of November 2008."
Given that the matter pertaining to disclosure of cut off marks and scaling technique is pending before the Apex Court in SLP (C )No. 23250/2008 against the Judgment & Order dated 3.9.2008 of the Division bench of the Hon'ble High Court of Delhi in LPA No. 313 of 2007, we agree that, as per the law settled by the Hon'ble Supreme Court of India, when an appeal is pending adjudication before that court a lower court should refrain from passing such order as may lead to the appeal before the superior court being rendered infructuous. Information regarding raw marks/ moderated marks cannot be in our view therefore, disclosed when this specific issue is under challenge before the Apex Court. The hearing was, therefore, adjourned to 17.11.2008 at 12.00 noon.
The following appeared before us:
Appellant at NIC Studio, Gorakhpur Mr. Shiv Kumar Patel Respondents at CIC Studio, New Delhi Ms. Amita Kalkal Choudhary, Advocate Mr. Prachish Khanna, CPIO, UPSC Mr. Bimalendu Bhattacharya, US, UPSC Ms. Amita Kalkal Choudhary, Learned Counsel for respondents pleaded that the matter has been adjourned by the Supreme Court to 15.12.08. She submitted a copy of the order of the Apex Court dated 29.9.08, which is quoted above 6 Ms. Choudhary submitted that at the time of scheduled hearing the matter came up before Registrar, SCI who found that respondents before the Supreme Court, who were appellants Shiv Shambu & Ors in the case decided in their favour by this Commission, have not filed their rejoinders. Hence adjournment is being given. There is thus no failure on the part of the respondents in the case before us.
The issue before us is simple. This Commission has already announced judgment on the issue at hand. The question now is whether given the further adjournment granted by the Supreme Court in the present case, we continue to adhere to the principle enunciated in our decision of 17.10.08 in the present case.
The Apex Court in its decision of 29.9.08, cited above, has in fact allowed respondents, who were appellants in the case before us decided on 17.10.08 on the question of scaling pattern in File No. File No. CIC/MA/A/2006/00793 Shambhu & Ors vs. UPSC to file rejoinders to counter affidavits submitted by UPSC. which they are stated by learned counsel for respondents in the present case Ms. Amita Kalkal Choudhary, not to have responded. Despite this, the apex court has given no further consideration to the request for stay order by respondents, who are petitioners in the case before the Hon'ble Supreme Court on the question of the Stay Order. We cannot, therefore, accept that we continue to adhere to the principle accepted by us in our decision of 17.10.08.
DECISION NOTICE In our decision in File No. CIC/MA/A/2006/00793 vs. Shiv Shambu & Ors dated 13.11.2006 we had ordered as follows:
"ii) The UPSC, within two weeks from the date of this order, shall also disclose the cut-off marks fixed in respect of the General Studies paper and in respect of each of the Optional Papers and if no such 7 cut-off marks are there, it shall disclose the subject-wise marks assigned to short-listed candidates; and
iii) The UPSC shall examine and consider under Section 8(1) (d) of the RTI Act the disclosure of the scaling system as it involves larger public interest in providing a level playing field for all aspirants and shall place the matter before the Competent Authority within one month from the date of this order. This will also cover the issue of disclosure of model answers, which we recommend should in any case be made public from time to time. In doing so, it shall duly take into account the provisions of Section 9 of the RTI Act. "
This decision applies mutatis mutandis in the present case, modified, as it may be by the Order of the High Court of Delhi in LPA No. 313/2007 dated 3.9.08. Respondents will, therefore, provide the information sought by Shri Shiv Kumar Patel of Gorakhpur to appellant within 20 working days of the date of issue of this decision notice.
Reserved in the hearing this Decision is announced in open chamber on 19.11.'08. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 19.11.2008 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 19.11.2008 8