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Wednesday, February 21, 2018

Civil Services (Preliminary) Examination, 2010. - writ for direction to the Union Public Service Commission (UPSC) to disclose the details of marks (raw and scaled) awarded to them in the Civil Services (Prelims) Examination 2010. = 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. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.= In view of the above, the impugned order(s) is set aside and the writ petitions filed by the writ petitioners are dismissed. This order will not debar the respondents from making out a case on above parameters and approach the appropriate forum, if so advised.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.(s).6159-6162 OF 2013
UNION PUBLIC SERVICE COMMISSION ETC. Appellant(s)
 VERSUS
ANGESH KUMAR & ORS. ETC. Respondent(s)
WITH
C.A. No. 5924/2013
JOINT DIRECTORS AND CENTRAL PUBLIC
INFORMATION OFFICER AND ANR. Appellant(s)
 VERSUS
T.R. RAJESH Respondent(s)
AND
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)No....... of 2018 (@Diary No(s). 15951/2017)
O R D E R
Civil Appeal No(s).6159-6162 of 2013 :
(1) We have heard learned counsel for the parties and
perused the record.
(2) These appeals have been preferred against
judgment and Order dated 13.7.2012 in LPA NO.229 of
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2011 in W.P.(C)NO.3316 of 2011, 28.08.2012 in Review
Petition NO.486 of 2012 in LPA NO.229/2011 and Review
Petition NO.484 of 2012 in W.P.(C) NO.3316/2011 of the
High Court of Delhi at New Delhi.
(3) The respondents-writ petitioners were
unsuccessful candidates in the Civil Services
(Preliminary) Examination, 2010. They approached the
High Court for a direction to the Union Public
Service Commission (UPSC) to disclose the details of
marks (raw and scaled) awarded to them in the Civil
Services (Prelims) Examination 2010. The information
in 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
provided within fifteen days. The said view of the
Single Judge has been affirmed by the Division Bench
of the High Court.
(4) The main contention in support of these appeals
is that the High Court has not correctly appreciated
the scheme of the Right to Information Act, 2005 (the
Act) and the binding decisions of this Court.
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(5) It is submitted that though Sections 3 and 6 of
the Act confer right to information (apart from
statutory obligation to provide specified information
under Section 4), Sections 8, 9 and 11 provide for
exemption from giving of information as stipulated
therein. The exclusion by Sections 8, 9 and 11 is
not exhaustive and parameters under third recital of
the preamble of the Act can also be taken into
account. Where information is likely to conflict
with other public interest, including efficient
operation of the Government, optimum use of fiscal
resources and preservation of confidentiality of some
sensitive information, exclusion of right or
information can be applied in a given fact situation.
(6) In support of this submission, reliance has been
placed on judgment of this Court in Central Board of
Secondary Education and Anr. v. Aditya Bandopadhyay
and Ors., (2011) 8 SCC 497 wherein this Court
observed :
“61. Some High Courts have held that Section 8 of
the RTI Act is in the nature of an exception to
Section 3 which empowers the citizens with the
right to information, which is a derivative from
the freedom of speech; and that, therefore, Section
8 should be construed strictly, literally and
narrowly. This may not be the correct approach. The
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Act seeks to bring about a balance between two
conflicting interests, as harmony between them is
essential for preserving democracy. One is to bring
about transparency and accountability by providing
access to information under the control of public
authorities. The other is to ensure that the
revelation of information, in actual practice, does
not conflict with other public interests which
include efficient operation of the Governments,
optimum use of limited fiscal resources and
preservation of confidentiality of sensitive
information. The Preamble to the Act specifically
states that the object of the Act is to harmonise
these two conflicting interests. While Sections 3
and 4 seek to achieve the first objective, Sections
8, 9, 10 and 11 seek to achieve the second
objective. Therefore, when Section 8 exempts
certain information from being disclosed, it should
not be considered to be a fetter on the right to
information, but as an equally important provision
protecting other public interests essential for the
fulfilment and preservation of democratic ideals.
62. When trying to ensure that the right to
information does not conflict with several other
public interests (which includes efficient
operations of the Governments, preservation of
confidentiality of sensitive information, optimum
use of limited fiscal resources, etc.), it is
difficult to visualise and enumerate all types of
information which require to be exempted from
disclosure in public interest. The legislature has
however made an attempt to do so. The enumeration
of exemptions is more exhaustive than the
enumeration of exemptions attempted in the earlier
Act, that is, Section 8 of the Freedom to
Information Act, 2002. The courts and Information
Commissions enforcing the provisions of the RTI Act
have to adopt a purposive construction, involving a
reasonable and balanced approach which harmonises
the two objects of the Act, while interpreting
Section 8 and the other provisions of the Act.
66. The right to information is a cherished right.
Information and right to information are intended
to be formidable tools in the hands of responsible
citizens to fight corruption and to bring in
transparency and accountability. The provisions of
the RTI Act should be enforced strictly and all
efforts should be made to bring to light the
necessary information under clause (b) of Section
4(1) of the Act which relates to securing
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transparency and accountability in the working of
public authorities and in discouraging corruption.
But in regard to other information [that is,
information other than those enumerated in Sections
4(1)(b) and (c) of the Act], equal importance and
emphasis are given to other public interests (like
confidentiality of sensitive information, fidelity
and fiduciary relationships, efficient operation of
Governments, etc.).
67. Indiscriminate and impractical demands or
directions under the RTI Act for disclosure of all
and sundry information (unrelated to transparency
and accountability in the functioning of public
authorities and eradication of corruption) would be
counterproductive as it will adversely affect the
efficiency of the administration and result in the
executive getting bogged down with the
non-productive work of collecting and furnishing
information. The Act should not be allowed to be
misused or abused, to become a tool to obstruct the
national development and integration, or to destroy
the peace, tranquillity and harmony among its
citizens. Nor should it be converted into a tool of
oppression or intimidation of honest officials
striving to do their duty. The nation does not want
a scenario where 75% of the staff of public
authorities spends 75% of their time in collecting
and furnishing information to applicants instead of
discharging their regular duties. The threat of
penalties under the RTI Act and the pressure of the
authorities under the RTI Act should not lead to
employees of a public authorities prioritising
“information furnishing”, at the cost of their
normal and regular duties.”
(emphasis added)
(7) Thus, it is clear that in interpreting the
scheme of the Act, this Court has, while adopting
purposive interpretation, read inherent limitation in
Sections 3 and 6 based on the Third Recital in the
Preamble to the Act. While balancing the right to
information, public interest including efficient
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working of the Government, optimum use of fiscal
resources and preservation of confidentiality of
sensitive information has to be balanced and can be a
guiding factor to deal with a given situation de hors
Sections 8,9 and 11. The High Court has not applied
the said parameters.
(8) 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
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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
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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.”
(9) 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
701.
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(10) 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.
Furnishing raw marks will cause problems as pleaded
by the UPSC as quoted above which will not be in
public interest. However, if a case is made out
where the Court finds that public interest requires
furnishing of information, the Court is certainly
entitled to so require in a given fact situation. If
rules or practice so require, certainly such rule or
practice can be enforced. In the present case,
direction has been issued without considering these
parameters.
(11) In view of the above, the impugned order(s)
is set aside and the writ petitions filed by the writ
petitioners are dismissed. This order will not debar
the respondents from making out a case on above
10
parameters and approach the appropriate forum, if so
advised.
(12) The appeals are accordingly disposed of.
Civil Appeal No. 5924 of 2013:
(1) In view of judgment rendered today in Civil
Appeal No(s).6159-6162 of 2013, the impugned order is
set aside. The appeal stands disposed of 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) NO......... of 2018 (arising out of
Diary No(s). 15951/2017) :
(1) Delay condoned.
(2) In view of judgment rendered in Civil Appeal
Nos.6159-6162 of 2013, these special leave petitions
are disposed of in the same terms.

..........................J.
 (ADARSH KUMAR GOEL)
..........................J.
 (UDAY UMESH LALIT)
New Delhi,
February 20, 2018.

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