HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 537 of 2007 (M/S) Uttarakhand Public Services Commission, Gurukul Kangari, Haridwar, Through its Secretary. ……..Petitioner Versus agmohan Singh and another. …….Respondents J Mr. B.D. Kandpal, Advocate for the petitioner. Mr. Vipul Sharma, Advocate for the respondent no.2. Dated: September 30, 2010 Hon’ble V.K. Bist, J. The Petitioner, Public Services Commission, is the Constitutional body constituted under Article 315 of Constitution of India. The petitioner is the Selection Making Body of Public Services, which comes within the purview of the Commission. The petitioner conducts examinations, screening tests and interviews under the provisions of relevant Service Rules and the Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 1976 [adopted by the Uttarakhand State] and the Service Rules framed by the State Government for the purpose of the selection on the various posts in various departments. 1976 Rules stipulate that there are specific provisions with respect to the constitutions of Interview Boards, Panel of Examiners, Conduct of Examination, Declaration of results of successful candidates etc. for the purpose of fair selection, which is to be made by the petitioner. It is submitted that as per the provisions contained therein, it is obligatory to the authorities of the petitioner that secrecy of the selection be maintained at every level. 2 2. It is asserted in the petition that in the year 2002, Govt. of Uttarakhand notified vacancies for the recruitment on the posts of Junior Engineers in the different departments of the Govt. of Uttarakhand and has formulated Recruitment Service Rule, namely, Uttarakhand Subordinate Engineering Service (Emergency Direct Recruitment) Rules, 2002. According to the Notification and Service Rules, a combined written examination was to be conducted by I.I.T. Roorkee and, thereafter, the petitioner was to prepare a merit list and declare result of written examination and thereafter to conduct the interview and made recommendation for selection to the post of Junior Engineer in different departments. In fulfillment of the assignment, after receiving the marks of written examination from I.I.T. Roorkee, the petitioner declared the result of written examination, merit-wise and category-wise, and thereafter, called the successful candidates for interview. After conducting interview, result of successful candidates was declared, merit-wise, category-wise and department- wise vide Notification dated 15.05.2004. It is asserted that vide Govt. Order dated 29.04.2004, the Govt. withdrew benefit of 10 bonus marks and providing further thereon that, in case in apprentice and direct employee are found in the same footage, preference will be given to the apprentice i.e. if both candidates apprentice as well as direct selected candidates obtain equal marks in the selection, in that event, preference will be given to the apprentice holders and accordingly, preference was given to the trained apprentice by the petitioner in the selection at the time of interview and final result was prepared on that basis and the result of successful candidates was 3 declared on 15.05.2006 and recommendation thereof was sent to the Government. 3. It is asserted that during selection process, several writ petitions were filed before this Court challenging the aforesaid selection, basically on the ground that no waitage has been given to the trained apprentice in the aforesaid selection. The respondent no. 1 also filed similar Writ Petition No. 250 (S/B) of 2006 seeking additional benefit on the basis of trained apprentice. The writ petitions, which were filed seeking benefit of apprentice, were finally disposed of by this Court with a direction that the trained apprentice should have been given 10 bonus marks as provided under the amended Rule. This Court further issued direction to the petitioner to grant 10 bonus marks to all the apprentice holders and prepare a fresh merit list holding that the petitioner committed an error in relying in Govt. Order dated 29.04.2004, as the same could not override the amended provisions of the Rule formulated under Section 309 of the Constitution of India. On filing Special Leave Petition by the Govt. of Uttarakhand, the Hon’ble Apex Court passed status-quo order and the Special Leave Petition is still pending. It is further stated that to assess the suitability of the candidates, the Interview Board frames its own criteria for the purpose of selection and the said criteria is secret, so that in future selection, the secrecy of the petitioner may be maintained and if this criteria is exposed by way of any information given under Right to Information Act, it will cause exposure of secrecy of selection process of the petitioner, which is not in public interest. 4 4. It is asserted that respondent no.1 sought some information regarding the selection of Junior Engineers Direct Recruitment Examination, 2002 vide application dated 30.05.2006 whereby he sought two information quoted below:- (a) Marks obtained by respondent no.1 and the minimum cut of marks of the last selected candidate. (b) District-wise numbers of candidates appeared in interview and list of selected candidates. 5. The petitioner answered the above queries as under:- (a) In the aforesaid selection in Civil Engineering, the lowest cut of marks of selected candidates was 105 marks. The marks obtained by respondent no.1 in the written examination were 82 and in interview 14, total 96 marks. (b) The Commission has not maintained any record regarding the District-wise candidature. So far the select list of selected candidates is concerned, the same has already been notified by the petitioner. However, the respondent can get a copy thereof after depositing ` 48/- @ ` 2/- per page before the Commission. 6. The respondent no.1, thereafter, submitted Bank Draft and information regarding the selected candidates was given to him. On 30.08.2006, the respondent no.1 further sought information for the following:- (a) District-wise list of the candidates appeared in interview and thereafter selected. (b) List of marks obtained by selected candidates. (c) List of candidates who obtained marks in between 105 to 106 in Civil Engineering Department and their full addresses. 7. Petitioner contended that in response to the above queries, admissible information was given to respondent no.1 vide information dated 12.09.2006 5 informing therein that such an information regarding list of District-wise candidates called for interview and finally selected cannot be made available as no list on that basis is prepared by the petitioner. Further the list of the selected candidates has already been made available to him by the petitioner vide letter dated 19.08.2006, therefore, no fresh information is required to be given. So far the third information as sought by the respondent no.1 is concerned, the respondent no.1 was informed that the information regarding the candidates who scored marks in between 105 to 106 and their addresses, cannot be given as the same relates to the 3rd party and is exempted under Section 8(1) (d) and 8(1) (j) of the Act. Not being satisfied by the aforesaid answers, the respondent no.1 filed First Appeal/ Representation before Appellate Authority/ Chairman, Public Service Commission seeking the information regarding the aforesaid information. The Appellate Authority decided the representation and the same was communicated to respondent no.1, but feeling discontentment with the decision, he preferred II Appeal bearing Appeal No. Aa. 234/2007 ‘Jagmohan Singh vs. Chairman, Public Service Commission’ before the Commissioner, State Information Commission, Uttarakhand. After receipt of notice, the petitioner filed reply thereon in which, interalia, it was informed that as per the provisions of Uttar Pradesh (Uttarakhand) Public Service Commission (Procedure and Conduct of Business) Rules, 1976 the marks obtained by successful and unsuccessful candidates are not to be published, merely the list of successful candidates in the successful discipline, is to be notified, after completion of the selection process. 6 8. The petitioner is aggrieved by the order dated 30.04.2007 passed by the Chief Information Commissioner, Dehradun/respondent no.2 in Appeal No. A-234/2007 filed under Section 19(2) of Right to Information Act, 2005, (hereinafter referred to as the Act) by which the petitioner has been directed to provide certain information to respondent no.1 within a period of three weeks. 9. I have heard Mr. B.D. Kandpal, Advocate for the petitioner and Mr. Vipul Sharma, the learned counsel for the respondent no.2 and perused the entire material available on record. 10. Learned counsel for the petitioner contended that the order impugned dated 30.04.2007 is illegal and arbitrary, as while passing this order, the respondent no.2 has violated Section 8(1) (d) (j) and Section 11 of the Act and against the procedure laid down in Rule 44 to Rule 52 of Uttar Pradesh (Uttarakhand) Public Service Commission (Procedure and Conduct of Business) Rules, 1976. He further contended that under Section 8(1) of the Act, certain exemption for disclosure of information has been given and as per the Section 8(1) (d), the information, which is intellectual property, disclosure of which would harm the competitive position of 3rd party, has been exempted under the Act. Further as per the provision of Section 8(1) (j), those information are also exempted which relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of privacy of individual, unless the Central Public Information Officer or the State Public Information 7 Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. He also contended that, in any case, as provided under Section 11 of the Act, where a Central Public Information Officer or a State Public Information Officer intend to disclose any information or record, regarding the 3rd party or any information or record submitted by 3rd party, such Officer shall give a written notice to 3rd party regarding his intention to disclose of information and call for his consent or objection regarding the same and on the basis of such consent or objection of the 3rd party, such Officer may take a decision thereon, keeping in view the objection raised by 3rd party as well as public welfare involved in the matter. Learned counsel for the petitioner contended that the respondent no.1 has prayed only for the information in point no. ‘c’ as above, as such, while passing the order impugned the respondent no.2 transcended his jurisdiction in directing the petitioner to make available the marks obtained by successful candidates in response of point no. 2 as above. He lastly argued that the petitioner is already providing individual marks of the candidates as well as lowest cut of marks, as such, there was no public interest involved in directing the disclosure of the marks of all the successful candidates. 11. On the contrary, Mr. Vipul Sharma, Advocate for respondent no.2 vehemently refuted the contentions made by the petitioner and argued that the State Information Commission, Uttarakhand did not commit any error of law in passing the order impugned. He contended that the order under challenge did not violate any Rules of the Act framed thereunder. He invited 8 attention of the Court towards proviso of Section 8(1) (j) of the Act, which provides that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person. He further submitted that disclosure of marks obtained by the candidates would be in larger public interest and order passed by the State Information Commission is perfectly correct order. 12. For proper appreciation, Section 8(1)-(d) & (j) and Section 11 of the Act and Rule 44 to 52 of Uttar Pradesh (Uttarakhand) Public Service Commission (Procedure and Conduct of Business) Rules, 1976 are reproduced hereunder:- Section 8 Exemption from disclosure of information- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:- (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which could harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 11. Third party information.- (1) Where a Central Public Information 9 Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or party thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure or information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not 10 to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. Rule 44 to Rule 52 of Uttar Pradesh Public Service Commission (Procedure and Conduct of Business) Rules, 1976:- 44. Tabulation.- The Secretary shall take steps for tabulation of marks obtained by each candidates as soon as scrutiny of scripts, removal of discrepancies, removal of variations and corrections in marksheets, if any, have been done. He will ensure that the work is taken up immediately after receipt of answer books. 45. The Commission may make random checking of the tabulation to ensure correctness and accuracy of tabulation as well as of assessment of answer books. 46. Where the tabulation is complete and thoroughly checked by the office and the Commission as provided for in the above rules, the Secretary shall submit the result before the Commission in the form and in the manner to be prescribed by the Commission to take orders as to how many candidates are considered fit for being admitted for personality test/interview. 47. Original roll numbers of candidates shall then be restored and interview letters issued accordingly. 48. It shall be the responsibility of the Secretary to ensure correct tabulation of marks and correct restoration of original roll numbers of the candidates. 49. The Commission shall decide the number of candidates to be called for interview to appear before a board or boards on any day. 50. On each day after the interview is over and marks are awarded to each candidates, the marksheet prepared in duplicate shall be placed in separate 11 sealed covers and original will be sent to the Secretary to be kept under his safe and secret custody, and the duplicate shall be retained by the presiding Member till the results are finalized. 51. The marksheet so obtained shall be opened on the last day of interview and immediately thereafter the marks of interview/personality test shall be added to the marks obtained by the candidates in the written examination. Thereafter on the basis of the totals so obtained the merit list shall be prepared and placed before the Commission for final declaration of the result. Provided that the Commission may, with a view to eliminating variation in the marks awarded so candidates at any examination or interview, adopt an method, device or formula which they consider proper for the purpose. 52. After the results are declared by the Commission, the same will be issued immediately to the press for publication. A copy shall be placed on the notice board.” 13. Arguments raised by the learned counsel for the petitioner that impugned order passed by learned State Chief Information Commissioner is against Section 8(1) (d) (j) and Section 11 of the Act as well as against the procedure laid down in Rule 44 to Rule 52 of Uttar Pradesh (Uttarakhand) Public Service Commission (Procedure and Conduct of Business) Rules, 1976 is not correct as the petitioner failed to demonstrate that how the disclosure of marks to respondent no.1 will violate the said provisions whereby exemption has been given to the petitioner and why the marks obtained by the candidates should be kept secret. 12 14. Disclosure of marks obtained by a candidate would be in larger public interest. Candidates have the right to know about the marks obtained by them as well as the marks obtained by the selected candidates. Candidates also have the right to know where they went wrong. By knowing the marks obtained by them, they will be in a position to improve their performance in future tests/interviews. The petitioner is an Autonomous Body and is renowned for its fairness. Such Body should keep the marks obtained by the candidate in every examination open to all so that faith of general public may remain intact. Secrecy of the marks obtained by the candidate should be maintained but such secrecy should be maintained upto the stage of declaration of final results. Once final result is declared, there is no need to keep marks secret. Disclosure of information would not harm the competitive position of any third party. In any event, the petitioner, being the public body, is required to act and conduct itself in a fair and transparent manner. It would also be in public interest that this fairness and transparency is displayed by revealing the information sought. Disclosure of information, as directed by respondent no.2, does not, in any manner, harm the interest of petitioner or any third party. The respondent no.2 has not violated any provision of the Act referred by the learned counsel for the petitioner. The respondent no. 2 has appreciated the matter in correct perspective and has rightly issued direction for disclosure of information sought by respondent no.1, which does not call any interference. 13 15. For the reasons stated, the writ petition lacks merit and is liable to be dismissed. Accordingly, the writ petition is dismissed. No order as to costs. (V.K. Bist, J.) 30.09.2010 NCM: