UNION PUBLIC SERVICE COMMISSION ETC. versus ANGESH KUMAR & ORS. ETC. on 20 February 2018

1. We have heard learned counsel for the parties and perused therecord.B

2. These appeals have been preferred against judgment and Orderdated 13.7.2012 in LPA NO.229 of 2011 in W.P.(C)NO.3316 of 2011,28.08.2012 in Review Petition NO.486 of 2012 in LPA NO.229/2011and Review Petition NO.484 of 2012 in W.P.(C) NO.3316/2011 of theHigh Court of Delhi at New Delhi.C

3. The respondents-writ petitioners were unsuccessful candidatesin the Civil Services (Preliminary) Examination, 2010. They approachedthe High Court for a direction to the Union Public Service Commission(UPSC) to disclose the details of marks (raw and scaled) awarded tothem in the Civil Services (Prelims) Examination 2010. The informationDin the form of cut-off marks for every subject, scaling methodology,model answers and complete result of all candidates were also sought.Learned Single Judge directed that the information sought be providedwithin fifteen days. The said view of the Single Judge has been affirmedby the Division Bench of the High Court.

4. The main contention in support of these appeals is that theEHigh Court has not correctly appreciated the scheme of the Right toInformation Act, 2005 (the Act) and the binding decisions of this Court.

5. It is submitted that though Sections 3 and 6 of the Act conferright to information (apart from statutory obligation to provide specifiedinformation under Section 4), Sections 8, 9 and 11 provide for exemptionFfrom giving of information as stipulated therein. The exclusion by Sections8, 9 and 11 is not exhaustive and parameters under third recital of thepreamble of the Act can also be taken into account. Where informationis likely to conflict with other public interest, including efficient operationof the Government, optimum use of fiscal resources and preservation ofGconfidentiality of some sensitive information, exclusion of right orinformation can be applied in a given fact situation.

6. In support of this submission, reliance has been placed onjudgment of this Court in Central Board of Secondary Education andAnr.v. Aditya Bandopadhyay and Ors., (2011) 8 SCC 497 wherein thisCourt observed :H

“61. Some High Courts have held that Section 8 of the RTI Act isin the nature of an exception to Section 3 which empowers thecitizens with the right to information, which is a derivative fromthe freedom of speech; and that, therefore, Section 8 should beconstrued strictly, literally and narrowly. This may not be the correctapproach. The Act seeks to bring about a balance between twoconflicting interests, as harmony between them is essential forpreserving democracy. One is to bring about transparency andaccountability by providing access to information under the controlof public authorities. The other is to ensure that the revelation ofinformation, in actual practice, does not conflict with other publicinterests which include efficient operation of the Governments,optimum use of limited fiscal resources and preservation ofconfidentiality of sensitive information. The Preamble to the Actspecifically states that the object of the Act is to harmonise thesetwo conflicting interests. While Sections 3 and 4 seek to achievethe first objective, Sections 8, 9, 10 and 11 seek to achieve thesecond objective. Therefore, when Section 8 exempts certaininformation from being disclosed, it should not be considered tobe a fetter on the right to information, but as an equally importantprovision protecting other public interests essential for the fulfilmentand preservation of democratic ideals.

62. When trying to ensure that the right to information does notconflict with several other public interests (which includes efficientoperations of the Governments, preservation of confidentiality ofsensitive information, optimum use of limited fiscal resources, etc.),it is difficult to visualise and enumerate all types of informationwhich require to be exempted from disclosure in public interest.The legislature has however made an attempt to do so. Theenumeration of exemptions is more exhaustive than the enumerationof exemptions attempted in the earlier Act, that is, Section 8 ofthe Freedom to Information Act, 2002. The courts and InformationCommissions enforcing the provisions of the RTI Act have toadopt a purposive construction, involving a reasonable and balancedapproach which harmonises the two objects of the Act, whileinterpreting Section 8 and the other provisions of the Act.

66. The right to information is a cherished right. Information andright to information are intended to be formidable tools in the hands ABC

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Aof responsible citizens to fight corruption and to bring intransparency and accountability. The provisions of the RTI Actshould be enforced strictly and all efforts should be made to bringto light the necessary information under clause (b) of Section 4(1)of the Act which relates to securing transparency andaccountability in the working of public authorities and inBdiscouraging corruption. But in regard to other information [thatis, information other than those enumerated in Sections 4(1)(b)and (c) of the Act], equal importance and emphasis are given toother public interests (like confidentiality of sensitive information,fidelity and fiduciary relationships, efficient operation ofCGovernments, etc.).

67. Indiscriminate and impractical demands or directions underthe RTI Act for disclosure of all and sundry information (unrelatedto transparency and accountability in the functioning of publicauthorities and eradication of corruption) would beDcounterproductive as it will adversely affect the efficiency of theadministration and result in the executive getting bogged downwith the non-productive work of collecting and furnishinginformation. The Act should not be allowed to be misused orabused, to become a tool to obstruct the national developmentand integration, or to destroy the peace, tranquillity and harmonyEamong its citizens. Nor should it be converted into a tool ofoppression or intimidation of honest officials striving to do theirduty. The nation does not want a scenario where 75% of the staffof public authorities spends 75% of their time in collecting andfurnishing information to applicants instead of discharging theirFregular duties. The threat of penalties under the RTI Act and thepressure of the authorities under the RTI Act should not lead toemployees of a public authorities prioritising “informationfurnishing”, at the cost of their normal and regular duties.”

(emphasis added)

7. Thus, it is clear that in interpreting the scheme of the Act, thisGCourt has, while adopting purposive interpretation, read inherent limitationin Sections 3 and 6 based on the Third Recital in the Preamble to theAct. While balancing the right to information, public interest includingefficient working of the Government, optimum use of fiscal resourcesand preservation of confidentiality of sensitive information has to beHbalanced and can be a guiding factor to deal with a given situation de UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESHKUMAR & ORS. ETC.

hors Sections 8,9 and 11. The High Court has not applied the saidparameters.

8. The problems in showing evaluated answer sheets in the UPSCCivil Services Examination are recorded in Prashant Ramesh1Chakkarwarv. UPSC. From the counter affidavit in the said case,following extract was referred to :

“(B) Problems in showing evaluated answer books tocandidates.—(i) Final awards subsume earlier stages ofevaluation. Disclosing answer books would reveal intermediatestages too, including the so-called ‘raw marks’ which would havenegative implications for the integrity of the examination system,as detailed in Section (C) below.

(ii) The evaluation process involves several stages. Awardsassigned initially by an examiner can be struck out and reviseddue to (a) totalling mistakes, portions unevaluated, extra attempts(beyond prescribed number) being later corrected as a result ofclerical scrutiny, (b) The examiner changing his own awards duringthe course of evaluation either because he/she marked it differentlyinitially due to an inadvertent error or because he/she correctedhimself/herself to be more in conformity with the acceptedstandards, after discussion with Head Examiner/colleagueexaminers, (c) Initial awards of the Additional Examiner beingrevised by the Head Examiner during the latter’s check of theformer’s work, (d) the Additional Examiner’s work having beenfound erratic by the Head Examiner, been rechecked entirely byanother examiner, with or without the Head Examiner againrechecking this work.

(iii) The corrections made in the answer book would likely arousedoubt and perhaps even suspicion in the candidate’s mind. Wheresuch corrections lead to a lowering of earlier awards, this wouldnot only breed representations/grievances, but would likely leadto litigation. In the only evaluated answer book that has so farbeen shown to a candidate (Shri Gaurav Gupta in WP No. 3683of 2012 in Gaurav Gupta v. UPSC dated 6.7.2012(Del.)) on theorders of the High Court, Delhi and that too, with the marksassigned masked; the candidate has nevertheless filed a freshWP alleging improper evaluation.

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SUPREME COURT REPORTS

(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 particularanswer script in isolation could arise without appreciating thatsimilar standards have been applied to all others in the field. Non-appreciation of this would lead to erosion of faith and credibility inthe system and challenges to the integrity of the system, includingthrough litigation.

(v) With the disclosure of evaluated answer books, the danger ofcoaching institutes collecting copies of these from candidates (afterperhaps encouraging/inducing them to apply for copies of theiranswer books under the RTI Act) is real, with all its attendantimplications.

(vi) With disclosure of answer books to candidates, it is likely thatat least some of the relevant examiners also get access to these.Their possible resentment at their initial awards (that they wouldprobably recognise from the fictitious code numbers and/or theirmarkings, especially for low-candidature subjects) having beensuperseded (either due to inter-examiner or inter-subjectmoderation) would lead to bad blood between Additional Examinersand the Head Examiner on the one hand, and between examinersand the Commission, on the other hand. The free and frank mannerin which Head Examiners, for instance, review the work of theircolleague Additional Examiners, would likely be impacted. Qualityof assessment standards would suffer.

(vii) Some of the optional papers have very low candidature(sometimes only one), especially the literature papers. Even if allexaminers’ initials are masked (which too is difficult logistically,as each answer book has several pages, and examiners oftenrecord their initials and comments on several pages with revisions/corrections, where done, adding to the size of the problem), theway marks are awarded could itself be a give away in revealingthe examiner’s identity. If the masking falters at any stage, thenthe examiner’s identity is pitilessly exposed. The ‘catchment area’of candidates and examiners in some of these low-candidaturepapers is known to be limited. Any such possibility of the examiner’sidentity getting revealed in such a high-stakes examination wouldhave serious implications, both for the integrity and fairness of the UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESHKUMAR & ORS. ETC.

examination system and for the security and safety of the examiner.The matter is compounded by the fact that we have publicly statedin different contexts earlier that the paper-setter is also generallythe Head Examiner.

(viii) UPSC is now able to get some of the best teachers andscholars in the country to be associated in its evaluation work. Animportant reason for this is no doubt the assurance of theiranonymity, for which the Commission goes to great lengths. Oncedisclosure of answer books starts and the inevitable challenges(including litigation) from disappointed candidates starts, it is onlya matter of time before these examiners who would be calledupon to explain their assessment/award, decline to accept furtherassignments from the Commission. A resultant corollary wouldbe that examiners who then accept this assignment would be sorelytempted to play safe in their marking, neither awarding outstandingmarks nor very low marks, even where these are deserved.Mediocrity would reign supreme and not only the prestige, but thevery integrity of the system would be compromised markedly.”

9. This Court thereafter approved the method of moderationadopted by the UPSC relying upon earlier judgment in Sanjay Singhv.U.P. Public Service Commission, (2007) 3 SCC 720 and U.P. PublicService Commissionv. Subhash Chandra Dixit, (2003) 12 SCC 701.

10. Weighing the need for transparency and accountability on theone hand and requirement of optimum use of fiscal resources andconfidentiality of sensitive information on the other, we are of the viewthat information sought with regard to marks in Civil Services Examcannot be directed to be furnished mechanically. Situation of exams ofother academic bodies may stand on different footing. Furnishing rawmarks will cause problems as pleaded by the UPSC as quoted abovewhich will not be in public interest. However, if a case is made outwhere the Court finds that public interest requires furnishing ofinformation, the Court is certainly entitled to so require in a given factsituation. If rules or practice so require, certainly such rule or practicecan be enforced. In the present case, direction has been issued withoutconsidering these parameters.

11. In view of the above, the impugned order(s) is set aside andthe writ petitions filed by the writ petitioners are dismissed. This order A

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Awill not debar the respondents from making out a case on aboveparameters and approach the appropriate forum, if so advised.

12. The appeals are accordingly disposed of.

Civil Appeal No. 5924 of 2013:

B1. In view of judgment rendered today in Civil Appeal No(s).6159-6162 of 2013, the impugned order is set aside. The appeal stands disposedof in the same terms.

SLP(C) No. 28817/2014, SLP(C) No. 28801/2014, SLP(C) No.28811/2014 SLP(C) No. 28816/2014, SLP(C) No. 28805/2014, SLP(C)CNO......... of 2018 (arising out of Diary No(s). 15951/2017):

1. Delay condoned.

2. In view of judgment rendered in Civil Appeal Nos.6159-6162of 2013, these special leave petitions are disposed of in the same terms.

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Kalpana K. Tripathy

Matters disposed of.

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