IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 02.09.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.13132 to 13134 OF 2009 T.Balaji .. Petitioner (in W.P.No.13132/2009) A.Anbuchezhian .. Petitioner (in W.P.No.13133/2009) P.Thirumalaicheran .. Petitioner (in W.P.No.13134/2009) Versus 1.The Secretary Tamil Nadu Public Service Commission Ommanthurar Government Estate Anna Salai, Chennai – 600 002. 2.The Secretary to Government Home Department Secretariat, Chennai – 600 009. 3.The Information Officer Tamil Nadu Public Service Commission Ommanthurar Government Estate Anna Salai, Chennai – 600 002. .. Respondents (in W.P.Nos.13132 to 13134/2009) PRAYER IN W.P.NOS.13132 TO 13134 OF 2009: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, forbearing the respondents 1 and 3 from proceeding further with selection process by in any manner selecting, appointing the candidates called for oral interview pursuant to the written examination held on 29.07.2007 without providing the particulars sought by the petitioner in the petition dated 10.07.2009 under the Right to Information Act regarding the copy of the OMR answer sheet and the Mart Statement of the petitioner, marks secured by all https://hcservices.ecourts.gov.in/hcservices/ candidates selected for the Oral Interview in the written examination held on 29.07.2007 for the post of Motor Vehicle Inspector, Grade – II in the Tamil Nadu Transport Subordinate Service for the year 2001- 2006. For Petitioner : Mr.K.M.Vijayan Senior Counsel for M/s.Fast Track Law Associates (in W.P.Nos.13132 to 13134/2009) For R-1 & 3 : Mr.G.Masilamani Senior Counsel for Mr.K.Surendranath / Mr.V.Saravanan (TNPSC) (in W.P.Nos.13132 to 13134/2009) For R-2 : Mrs.Lita Srinivasan Government Advocate (in W.P.Nos.13132 to 13134/2009) O R D E R In view of the common issues raised in all the Writ Petitions having the same prayer with identical facts all the writ petitions have been taken up together and a common order is passed. 2.The first respondent / Tamil Nadu Public Service Commission issued a notification in Advertisement No.107 dated 25.07.2007 and invited applications from the eligible candidates for filling up 49 vacancies for the post of Motor Vehicle Inspector, Grade - II spreading over the period between 2001-2006. 3.In pursuant to the said notification, the petitioners herein have made applications and appeared for the main written examination held on 29.07.2007. Thereafter, the first respondent had published the list of candidates who have been selected for the oral test to be held on 15.07.2009. Having found the names of the petitioners not included in the selection list, the petitioners have preferred the present writ petitions alleging that there is no fairness in the selection process. The petitioners gave a representation to the first respondent on 06.07.2009 seeking the revaluation of the answer sheets written by the petitioners and to give copies of the answer sheets. The first respondent has sent a reply stating that as per the Tamil Nadu Public Service Commission letter dated 17.08.2009 and as well as the orders passed by the Hon'ble Supreme Court, no candidate would be permitted to scrutinise the necessary answer sheets and given the copies of the answer sheets. However if the Hon'ble Court orders in the pending writ https://hcservices.ecourts.gov.in/hcservices/ petitions permits then the same can be considered. It has been further stated in the said letter that the marks of the candidates will be published in the website of the first respondent after the publication of the results, the request for revaluation cannot be considered and the request for re-totalling and re-examination would be done after the publication of the results. Thereafter, in accordance with the provisions of the Right to Information Act, 2005 an application was made by the petitioners on 10.07.2009 in the prescribed format seeking for the following particulars: "A. Provide me the mark statements of all the Selected Candidates under Reference (ii) B. Provide me the copy of my OMR Answer Sheet. C. Provide my mark statement for the exam written by me on 29.07.2007 stated under Reference (ii). D. Whether the Tamil Nadu Public Service Commission published the mark statement of all the candidates who appeared for the exam stated under Reference (ii)? If not state the reason and the law that prohibit such publication of mark statement. E. Under what circumstances and reasons I was not selected for the Oral Interview? F. What is the ratio of selection for the Oral Interview? G. What are the measures adopted to ensure fairness while selecting candidates stated under Reference (ii)? H. Is there any Quota system? If so provide the details of the candidates selected under different Quotas." 4.In view of no prompt reply from the respondents 1 and 3 and also in view of the urgency that the interview is proceeding further from 15.07.2009 onwards, the petitioners have moved this Hon'ble Court by filing these writ petitions on 13.07.2009 seeking the relief of Writ of Mandamus forbearing the respondents from proceeding further with selection process in pursuant to the written examination held on 29.07.2007 without providing the particulars sought for by the petitioners in their petitions dated 10.07.2009 under the Right to Information Act. https://hcservices.ecourts.gov.in/hcservices/ 5.Counter affidavits have been filed by the respondents 1 and 3 stating that even though the examination was conducted on 29.07.2007, there was no progress in the selection in view of the pendency of the Court proceedings and the results of the list of selected candidates for the written examination was published in pursuant to the orders passed by the Hon'ble High Court on 25.03.2009. 6.It has been further stated that the entire selection process is absolutely fair and the respondents have evolved a perfect methodology in scanning the answer sheets immediately to avoid manipulation and the selection process is conducted with care and caution. It has been stated that the valuation procedure has been divided into two parts and each of them have been handled by two different Confidential Departments. The scanning of the OMR answer sheets is done in the Evaluation Department by using OMR scanners wherein the response shaded by the candidates alone are captured. After scanning, the scanned data is transferred to the confidential department in a Compact Disc. After transferring the scanned data, the fields in the OMR answer sheets such as Register No., Subject Code and Question Paper Booklet series alone are edited in ED section, in order to verify whether the candidates have committed any mistake while shading or omitted to shade these fields. After completing the said editing, the final data is again transferred to the Confidential Department for further process. The scanned data already transferred and the final data are compared to verify whether there are any deviations on the part of candidates' responses in answer sheets. The procedure of awarding of marks to the responses shaded by the candidates is done at the Confidential Department, based on matching of answer keys with the responses in data, transferred by the Evaluation Department. The utmost care is taken by the Commission, to avoid any untoward happenings. The above in-house mechanism of valuation will not be revealed to the public normally, since these matters are confidential in nature. 7.It is further submitted that the writ petitions are liable to be dismissed since the averments are based upon surmises and conjectures. The respondents would conduct the oral test and thereafter, the marks of the written examination as well as the oral test would be published on the last date of the oral test in the website and the Notice Board of the Commission. After the final results are published, the marks of the candidates who are not been summoned for the oral test would be published. It is stated that the marks are not published earlier in order to maintain the secrecy in the oral test and also in order to prevent a candidate from attempting to influence the members. After the evaluation of the written marks they will be kept in a secret cover in a safe custody with the Controller of Examinations. After the oral test is over, both the marks will be totalled and ranking will be given as per the same. https://hcservices.ecourts.gov.in/hcservices/ 8.It has been further averred in the counter affidavit that the respondents 1 to 3 are empowered to evolve their own process by virtue of the power conferred on them under Article 320(1) of the Constitution of India. The petitioners having participated in the selection process cannot question the same. A reading of the instructions to the candidates in paragraph 22(b) would clearly show that the marks obtained by the candidate will be placed in the notice board and the same will also be available in the website. Further, the Union Public Service Commission has stated that the necessary answer sheets need not be shown to the candidates. Therefore, it is prayed by the respondents 1 to 3 that the writ petitions will have to be dismissed. 9.Shri.K.M.Vijayan, learned senior counsel for the petitioners submitted that the right given under Right to Information Act, 2005 cannot be taken away by the instructions issued by the respondents. According to the learned senior counsel when the prospectus is unconstitutional having instructions by way of conditions contrary to the provisions of the Right to Information Act, 2005 the same cannot be put against the petitioners. 10.Shri.K.M.Vijayan, learned senior counsel for the petitioners further submitted that the relief sought for under the Right to Information Act, 2005 would prevail over the policy decision of the respondents. The petitioners have filed the writ petitions at the appropriate time since they have filed the writ petitions only after coming to know that their names have not been found in the selected list. Further, it cannot be said that the petitioners will have to file an appeal as provided under Section 19 of the Right to Information Act, 2005. Since, the petitioners application dated 10.07.2009 in the prescribed format has not been decided by the respondents 1 and 3 so far. Hence, Mr.K.M.Vijayan, learned senior counsel for the petitioners prayed that the writ petitions will have to be allowed as sought for. The learned counsel further submitted that in any case this Hon'ble Court can direct the respondents to furnish the information sought for by the petitioners. 11.The learned senior counsel for the petitioners has relied upon the judgment reported in AIR 2009 CALCUTTA 97 [UNIVERSITY OF CALCUTTA AND OTHERS vs. PRITAM ROOJ] wherein the Division Bench of the Hon'ble High Court has held the answer script written by a candidate would come into the definition of word 'information' and under those circumstances, such a candidate is eligible for a copy of the same. The learned counsel has also relied upon the unreported judgment of the DELHI HIGH COURT in W.P.(C)NO.3114/2007 dated 03.12.2007 [BHAGAT SINGH vs. CHIEF INFORMATION COMMISSIONER AND OTHERS] wherein the learned single Judge of the Delhi High Court has held that Section 8(1)(j) of the Right to Information Act, 2005 would not be pressed against the request for furnishing the information sought in the absence of any pending investigation. https://hcservices.ecourts.gov.in/hcservices/ 12.Shri.G.Masilamani, learned senior counsel for the respondents 1 and 3 submitted that the prayer as sought for cannot be maintained in law and facts. According to the learned senior counsel, if the petitioners grievance is that to get the information sought for under Right to Information Act, 2005 then the petitioners will have to file an appeal. Further, the contention that the petitioners application dated 10.07.2009 is also pending will have to be rejected since there is no difference between the earlier representation made on 06.07.2009 which was rejected on 13.07.2009 and the subsequent representation. Moreover, a reading of Section 19 of the Right to Information Act, 2005 would show that even when no orders are passed by the respondents, an appeal would lie to the appropriate authority. According to the learned senior counsel the policy decision evolved by the respondents 1 and 3 in exercise of the power conferred under Article 320(1) of the Constitution of India cannot be interfered on the ground that the petitioners grievance under the Right to Information Act, 2005 has not been complied with. 13.Next, it is urged that in the present case on hand there is no challenge to the policy decision of the respondents 1 and 3. It is also to be seen that the writ petitioners are estopped in view of the specific clause provided under 22(b) of the instructions to the candidates. The prospectus and instructions are having the force of law and hence, the petitioners cannot maintain the present writ petitions. The respondents 1 and 3 have evolved a policy decision of not disclosing the marks after the written examination and the reasons behind the same cannot be questioned. The Hon'ble Supreme Court of India has also held that in the absence of any rules answer sheets cannot be given. 14.Shri.G.Masilamani, learned senior counsel for the respondents has relied upon the judgment reported in AIR 1984 SC 1543 [MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION AND ANOTHER vs. PARITOSH BHUPESH KURMARSHETH] in support of his contention that the judicial review of the Hon'ble Court against the policy decision is rather limited and also the non furnishing of the answer sheets would not amount to violation of principles of natural justice. The learned senior counsel for the respondents also replied upon the unreported judgment in W.P.C.NO.12583/2006 [SUNIL KUMAR RAI vs. UNION OF INDIA AND OTHERS] DATED 31.08.2006 wherein the High Court of Delhi has taken a view that in the absence of any rule a candidate need not be given the answer sheet. The learned counsel has also relied upon the judgment reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] to submit that the prospectus is having the force of law along with the instructions contained therein and hence one who has written the examination cannot be allowed to challenge the same. 15.It is also urged that the information sought for cannot be given since the same would come under the categories of exemption https://hcservices.ecourts.gov.in/hcservices/ as provided under Section 8(1) of the Right to Information Act, 2005. A particular reference has been made to Section 8(1)(d) and (e) of the said Act contending that there is a fiduciary capacity in which the information is held and the public interest does not require the furnishing of such information. 16.I have heard the arguments of the learned senior counsels appearing for both sides as well as the learned Government Pleader appearing for the second respondent. 17.The petitioners herein have filed the writ petitions on the ground that without providing the information as required by them under the Right to Information Act, 2005 the selection process shall not be proceeded with. A reading of the said prayer especially forbearing the respondents from proceeding with the selection process would make it clear that the same is not maintainable and misconceived. The said prayer would amount to a prayer for prohibition prohibiting a statutory authority from proceeding in accordance with law. In the absence of any legal right, the petitioners cannot prevent the public authorities from proceeding in accordance with law, based upon surmises and conjectures. 18.It is also to be noted that an official act is presumed to be correct until and unless the contrary is proved. In the judgment reported in (2009) 4 MLJ 417 [RAMACHANDRA REXINS PRIVATE LTD., vs. CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, CHENNAI], the Hon'ble Division Bench has taken a view that there is always a presumption in favour of the official act done in such a capacity and the party who allege any irregularity has to prove the same. Therefore, this Court under such a situation cannot exercise its discretionary power under Article 226 of the Constitution of India. The petitioners right to get an information under Right to Information Act, 2005 is one thing and without the information furnished by the respondents they cannot be allowed to proceed with as against their own procedure based upon their policy decision is another. The petitioners may have a legal right to get an information under the Right to Information Act, 2005 but they do not have a legal right to postpone the process of selection till the information is received. In other words, the petitioners cannot contend that until and unless they are allowed to have the information the further process cannot be allowed to go on. In the present case, the petitioners rights have not been crystalized in so far as the selection is concerned. Therefore, they have to get the information and thereafter, challenge the selection provided the information obtained would be sufficient enough for them to approach the appropriate forum. 19.In the present case on hand, the petitioners have taken a policy decision not to publish the marks after the written examination. They have also taken the policy decision to proceed with https://hcservices.ecourts.gov.in/hcservices/ the oral test and publish the results thereafter. As rightly contended by the learned senior counsel Shri.G.Masilamani, the wisdom of the respondents 1 and 3 in evolving the process by exercising the power conferred on them under Article 320(1) of the Constitution of India cannot be questioned by the petitioners more so on the ground that the respondents have not furnished the information as required under the Right to Information Act, 2005. It is further to be seen in the present case that the said policy decision has not been challenged by the petitioners. It is well settled principal of law, the provisions of the enactments will have to be given a harmonious construction and it cannot be presumed that they are in conflict with each other. 20.Therefore, the said policy decision which is based upon the application of mind and reasoning cannot be challenged by the petitioners indirectly on the ground that till they get the required documents the selection cannot be go on. If the request of the petitioners is granted then the same would go against the policy decision of the respondents 1 and 3. 21.The petitioners are aware of the rules and regulations as contained in the prospectus and the instructions given to the candidates. In this connection, it is useful to refer the paragraph 22(b) of the instructions given to the candidates which is as follows: "22(b). Posts for which selection is made on the basis of Written Examination and Oral Test. Where the selection is made on the basis of both, Main Written Examination/Written Examination and Oral Test, the Main Written Examination/Written Examination will precede the Oral Test. If the number of vacancies notified/reserved to be filled up for any one or more of the reservation groups(viz. Scheduled Castes, Scheduled Tribes, Most Backward Classes/Denotified Communities, Backward Classes or General Turn) is five and above, the number of candidates to be admitted to the Oral Test shall be two times the number of vacancies for which recruitment has to be made against those reservation groups based on the marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be. Similarly, if the number of vacancies in any one or more of the remaining reservation groups for the same recruitment is four and below, the number of candidates to be admitted to the Oral Test from those particular reservation groups(s) shall be three times the number of vacancies for which recruitment has to be made against those https://hcservices.ecourts.gov.in/hcservices/ reservation group(s). In respect of the posts, the total cadre strength of which is one only and for which the rule of reservation of appointments does not apply, the number of candidates to be admitted to the Oral Test on the basis of the marks obtained at the Written Examination will be three. The final selection will be made on the basis of the total marks obtained by the candidates at the Main Written Examination or Written Examination, as the case may be, and Oral Test taken together subject to the rule of reservation of appointments wherever it applies. Appearance in all the papers at the Main Written Examination/Written Examination and for Oral Test is compulsory. The candidates who have not appeared for any of the subjects in the Main Written Examination/Written Examination will not be considered for selection even if they secure the minimum qualifying marks for selection. The marks obtained by the candidates appearing for the Oral Test, both in the Written Examination as well as in the Oral Test will be placed in the Notice Board in the Office of the Tamil Nadu Public Service Commission in the evening either on the last day fixed for Oral Test or one the succeeding working day. The same will also be made available on the Internet in the Commission's Website www.tnpsc.org." Similarly, paragraph 19 of the said instructions is extracted herein: "19.Communication with the Tamil Nadu Public Service Commission i.Any communication intended for the Commission must be made in writing and addressed only to the Secretary, Tamil Nadu Public Service Commission, Omanthoorar Government Estate, Anna Salai, Chennai – 600 002. ii.If a reply is sought it must be accompanied by an envelope affixed with sufficient Postage Stamps with the address to which the reply is to be sent. iii.Communications asking for reasons for non-selection and request for exemption from age limit or other qualifications will receive no attention. https://hcservices.ecourts.gov.in/hcservices/ iv.The Commission will receive communications only from candidates. Communications in the name of pleader or agent will receive no attention. v.Requests for furnishing causes of failure in written exam or for non-selection on the results of the written exam / oral test or for revaluation of answer books will not be complied with. vi.Details of marks of all candidates who appeared for the main written exam / oral test will be available in the Commission's Website www.tnpsc.org. Vii.Candidates asking for details of marks after finalisation of selection should send a crossed Account Payee demand draft for Rs.10/- (Rupees Ten only) in favour of the Secretary, Tamil Nadu Public Service Commission." 22.A reading of the above said provisions would show that the request for furnishing cost of failure in the written examination or non selection for the written examination or for re-valuation will not be complied with. It also shows that the details of the marks will be available in the website and all the marks of the candidates will be given after the finalisation of the selection process. Therefore, in view of the above said provisions which are having the force of law, the petitioners cannot seek the information sought for by them during the process of selection. The petitioners are bound by the prospectus and the instructions which are having the force of law. 23.As rightly submitted by Shri.G.Masilamani, learned senior counsel for the respondents 1 and 3, the ratio laid down by the Division Bench in the judgment reported in 2006 (3) CTC 449 [DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] is squarely applicable to the facts on hand. The Division Bench has observed in paragraph 25 of the judgment is as follows: "25.In the earlier part of our order, we have extracted relevant provision, viz., Instructions, etc. to Candidates as well as the Information Brochure of the Tamil Nadu Public Service Commission, we hold that the terms and conditions of Instructions, etc. to Candidates and Information Brochure have the force of law and have to be strictly complied with. We are also of the view that no modification/relaxation https://hcservices.ecourts.gov.in/hcservices/ can be made by the Court in exercise of powers under Article 226 of the Constitution of India and application filed in violation of the Instructions, etc. to Candidates and the terms of the Information Brochure is liable to be rejected. We are also of the view that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed unless such power is specifically provided to a named authority by the use of clear language. As said at the beginning of our order, since similar violations are happening in the cases relating to admission of students to various courses, we have dealt with the issue exhaustively. We