Nitish Shankar v. Union of India

1. Vide the present appeal the Appellant seeks to challenge the Order dated 24.02.2023, passed by the learned Single Judge in W.P.(C) 2372/2023. The learned Single Judge by the Order impugned herein has dismissed the Writ Petition wherein the Appellant herein had prayed for a writ or direction to the Respondents herein to provide his answer sheets of all seven papers of the UPSC Civil Services Mains Examination along with their model answers to the Appellant herein.

2. Shorn of details, the facts of the case, in brief, are as under: a) It is stated that the Appellant is engineering graduate from BITS Pilani. It is stated that the Appellant herein applied and appeared for Civil Services (Preliminary) Examination 2020 and cleared the same and then appeared for the Mains Examination and was declared unsuccessful. It is stated that the Appellant wanted to see his answer sheets and for the same he applied for his answer sheets along with a copy of the model answers by filing an RTI application on 13.010.2021. b) The application of the Appellant herein filed under the Right to Information Act (hereinafter referred to as the ‘RTI Act’) was rejected by the Respondents on the ground that disclosure of answer sheets is exempted from the provisions of RTI Act in terms of the judgment dated 20.02.2018, passed by the Apex Court in Civil Appeal No. 6159-6162/2013, titled as UPCS etc. v. Angesh Kumar & Ors etc.. The appeal against the reply of the CPIO was rejected by the Appellate Authority on 04.01.2022. Material on record shows that being aggrieved by the reply of the first Appellate Authority the Appellant herein preferred a second appeal which was also rejected by the Appellate Authority on 13.10.2022. c) It is stated that the Appellant herein filed a Writ Petition, being W.P.(C) No.1134/2021 challenging the decision of the authorities before the Apex Court and the same was dismissed as withdrawn vide order dated 21.01.2021 with liberty to the Appellant herein to approach this Court. d) The Appellant, thereafter, approached this Court by filing W.P.(C) 2372/2023 praying for a writ or direction to the Respondents herein to provide the answer sheets of all seven papers of the UPSC Civil Services Mains Examination along with their model answers to the Appellant herein. The learned Single Judge vide Order impugned herein has dismissed the Writ Petition by placing reliance on the judgment of the Apex Court in Angesh Kumar (supra). e) It is this Order which has been challenged in the present appeal.

3. It is contended by the learned Counsel appearing for the Appellant that there is no reason as to why the Appellant should be denied access to his answer sheets and marks obtained by him in the Civil Services Examination. He states that there cannot be any secrecy in terms of the answer sheets. He further submits that the Courts have always leaned in favour of a transparent process and that permitting the Appellant herein to have access to his answer sheets and marks obtained by him would only make the process more transparent and thereby inducing confidence in the process of evaluation of answers.

4. Heard the Counsels and perused the material on record.

5. The issue as to whether the answer sheets of Civil Services (Mains) Examination can be supplied to an unsuccessful candidate or not is no longer res integra as the same stands crystallized by the Apex Court in its judgment in Angesh Kumar (supra). Relevant portion of the said Judgment, which though has been quoted by the learned Single Judge, is once again being quoted and the same reads as under: “(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.”

6. A perusal of the above paragraph shows that answer sheets of the Civil Services Examination can only be disclosed if public interest requires such disclosure. In the present case no public interest has been shows as to why the answer sheets should be provided to the Appellant herein. In Agnesh Kumar (supra) the Apex Court has placed reliance on Prashant Ramesh Chakkarwar v. UPSC, (2013) 12 SCC 489, in which the Apex Court has quoted the methodology of conducting the Civil Services Examination, evaluation of the answer scripts and the pitfalls of providing answer sheets has been explained and the same reads as under: “…. (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 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) on the orders [Gaurav Gupta v. UPSC, WP (C) No. 3683 of 2012, order dated 6-7-2012 (Del)] 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. Nonappreciation 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 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.”