UNION PUBLIC SERVICE COMMISSION ETC.versusANGESH KUMAR & ORS. ETC.

1076                      [2018]REPORTS
                SUPREME COURT    1 S.C.R. 1076                [2018] 1 S.C.R.


 A              UNION PUBLIC SERVICE COMMISSION ETC.
                                          v.
                        ANGESH KUMAR & ORS. ETC.
                     (Civil Appeal Nos. 6159-6162 of 2013 etc.)
 B                             FEBRUARY 20, 2018
       [ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
             Right to Information Act, 2005 –
              ss. 3, 6, 8, 9 and 11 – Writ petition u/Art. 226 of Constitution
 C     – Filed by unsuccessful candidates of the Civil Services
       (Preliminary) Examination – Seeking direction to Union Public
       Service Commission (UPSC) to disclose the details of marks (raw
       and scaled) awarded to them in the exam – Also sought information
       in the form of cut-off marks for every subject, scaling methodology,
       model answers, and complete result of all the candidates – Single
 D
       Judge of High Court directed UPSC to provide the sought information
       – View of Single Judge affirmed by Division Bench – On appeal,
       held: 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, it is to be
 E     held that the information sought with regard to marks in Civil
       Services Exam cannot be directed to be furnished mechanically –
       Furnishing raw marks will cause problems, 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
 F
       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 – The appeals and Special Leave
       Petitions are disposed of.
             Central Board of Secondary Education and Anr. v.
 G           Aditya Bandopadhyay and Ors. (2011) 8 SCC 497 :
             [2011] 11 SCR 1028 ; Prashant Ramesh Chakkarwar
             v. UPSC (2013) 12 SCC 489 – relied on.
             Sanjay Singh v. U.P. Public Service Commission (2007)
             3 SCC 720 : [2007] 1 SCR 235 ; U.P. Public Service
 H
                                      1076
  UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESH                         1077
                KUMAR & ORS. ETC.

      Commission v. Subhash Chandra Dixit (2003) 12 SCC                  A
      701 : [2003] 5 Suppl. SCR 210 – referred to.
                        Case Law Reference
      [2011] 11 SCR 1028            relied on           Para 6
      (2013) 12 SCC 489             relied on           Para 8           B
      [2007] 1 SCR 235              referred to         Para 9
      [2003] 5 Suppl SCR 210        referred to         Para 9
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6159-
6162 of 2013.
                                                                         C
       From the Judgment and Orders dated 13.07.2012 and 28.08.2012
of the High Court of Delhi at New Delhi in LPA No.229/2011 in W.P.
© No.3316/2011 and in Review Petition No.486/2012 in L.P.A. No.
229/2011 and Review Petition No.484 in W.P. (C) in W.P. © No.3316/
2011 respectively
                                                                         D
                                WITH
       C.A. No.5924 of 2013, S.L.P (C) Nos.28817, 28801, 28811, 28816,
28805 of 2014 and S.L.P (C) No….. of 2018 (@ Diary No.15951 of
2017).
      Tushar Mehta, ASG, Naresh Kaushik, Ms. Binu Tamta, Dhruv           E
Tamta, Vardhman Kaushik, Omung Raj Gupta, Karan D. Baghel, Devik
Singh, Manoj Joshi, Ms. Lalita Kaushik, Kumar Shashank, Advs for the
Appellants.
      Petitioner-in-person.
                                                                         F
      Pinky Anand, ASG, M.K. Maroria, Ms. Madhvi Diwan,
Ms. Saudamini Sharma, Ms. Rukmini Bobde, Renjith B. Marar, Lakshmi
N. Raimal, Vishnu P., Anubhav Anand Pandey, Ms. Kirti Dua, Sumit
Kumar Abhishek Chakraborty, Hemant Kumar, Nitin Singh, Sanjay Yadav,
Vikrant Singh Bais, Gaichangpou Gangmei, Arjun D. Singh, S.K. Verma,
Rameshwar Prasad Goyal, Munawwar Naseem, Vikrant Singh Bais,             G
Pankaj Kumar, Jagdish Kumar Chawla, Gaurav Agrawal, Yash Pal Singh
Dhingra, Advs for the Respondents.
      Rajesh Tiwari (Respondent-in-person).
      Caveator-in-person.
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1078             SUPREME COURT REPORTS                             [2018] 1 S.C.R.


 A            The following Order of the Court was delivered :
                                       ORDER
             Civil Appeal No(s).6159-6162 of 2013 :
             1. We have heard learned counsel for the parties and perused the
       record.
 B
             2. These appeals have been preferred against judgment and Order
       dated 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.229/2011
       and Review Petition NO.484 of 2012 in W.P.(C) NO.3316/2011 of the
       High Court of Delhi at New Delhi.
 C            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
 D     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
 E
       High Court has not correctly appreciated the scheme of the Right to
       Information Act, 2005 (the Act) and the binding decisions of this Court.
               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
 F     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
 G     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 :
 H
UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESH                               1079
              KUMAR & ORS. ETC.

  “61. Some High Courts have held that Section 8 of the RTI Act is           A
  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 Act seeks to bring about a balance between two
                                                                             B
  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,            C
  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
                                                                             D
  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           E
  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.           F
  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        G
  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
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1080             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


 A            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 transparency and
              accountability in the working of public authorities and in
 B
              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
 C            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
 D            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
 E            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
 F            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
 G
       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 working of the Government, optimum use of fiscal resources
       and preservation of confidentiality of sensitive information has to be
 H     balanced and can be a guiding factor to deal with a given situation de
     UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESH                          1081
                   KUMAR & ORS. ETC.

hors Sections 8,9 and 11. The High Court has not applied the said            A
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
      “(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.                                      C
      (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     D
      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         E
      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 Examiner again
      rechecking this work.
      (iii) The corrections made in the answer book would likely arouse      F
      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            G
      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.
1
    (2013) 12 SCC 489
                                                                             H
1082      SUPREME COURT REPORTS                            [2018] 1 S.C.R.


 A     (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
 B
       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
 C     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
 D     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
 E     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
 F     (sometimes only one), especially the 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
 G     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
 H     have serious implications, both for the integrity and fairness of the
  UNION PUBLIC SERVICE COMMISSION ETC. v. ANGESH                               1083
                KUMAR & ORS. ETC.

      examination system and for the security and safety of the examiner.      A
      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      B
      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        C
      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        D
      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.                E
       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         F
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    G
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
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1084             SUPREME COURT REPORTS                         [2018] 1 S.C.R.


 A     will not debar the respondents from making out a case on above
       parameters and approach the appropriate forum, if so advised.
              12. The appeals are accordingly disposed of.
              Civil Appeal No. 5924 of 2013:
 B            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)
 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.

 D
       Kalpana K. Tripathy                                     Matters disposed of.




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