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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.  UPSC  1 . 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

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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.