Mr.S K Rathee vs Union Public Service Commission on 15 July, 2010

                 CENTRAL INFORMATION COMMISSION
             Appeal No. CIC/WB/A/2009/000129 dated 19.2.2009
               Right to Information Act 2005 - Section 19

Appellant:          Shri S. K. Rathee
Respondent:         Union Public Service Commission (UPSC)
                  Heard & Decision announced 15.7.'10


FACTS

By an application of 5-9-2008 Shri S.K. Rathee of Bahadurgarh, Haryana
applied to the CPIO, UPSC seeking the following information:

“1. Copies of show cause notices served by the UPSC to all
invigilators and supervisors who were on duty on
14.6.2004 in Room No. 30 at the above examination
centre No. D-4.

2. Copies of replies by the invigilators and the supervisors to
their said show cause notices to the authority.

3. Copies of proceeding against the persons who were on
duty in the aforesaid room no. 30.”

To this Shri S.K. Rathee received a response from CPIO, & DS, UPSC
Shri Rameshwar Dayal dated 23/9/2008 informing him as follows:

“Requested information with respect to paras 1 to 3 of your
application relates to core area of functioning of the
Commission, which cannot be shared as disclosure of the same
would affect the confidentiality, fairness and efficacy of the
examination system and also no public interest would be served
thereby. The required information is also exempted from
disclosure under section 8 (1) (e) of the RTI Act, 2005.”

Curiously, the first appeal of Shri S.K. Rathee addressed to Shri K.S.

Bariar, JS (E), UPSC is dated 15-9-08 with receipt stamped by the PMO on 16-
9-08 in which the letter with same number as that of 23-9-08 is cited, even
though the date there under is 16-9-08. Nevertheless, Shri K.S. Bariar, JS (E)
in his order of 10-11-08 has come to the following decision:

“With regard to appellant’s requests at Para 2, 3 & 4 of his
appeal, it is noted that the sought information has been denied
by the CPIO, UPSC under Section 8 (1) (e). The information
sought is available under fiduciary relationship of the
Commission with Supervisor, Invigilators etc and disclosure is
not considered under public interest. Denial of these information
by the CPIO, UPSC is thus appropriate and as per provisions of
the RTI Act, 2005.

With regard to other opinions/ comments made by the appellant
in his appeal, I note that these are of a nature which do not
make an appeal.”

This has brought Shri Rathee to his second appeal before us with the
following prayer:

“1. Pray for certified photocopy of show cause notices served
by the UPSC to all invigilators and supervisor who were
on duty on 14.6.2004 in room no. 30 at the examination
centre No. D-004 at ‘Govt. Boys Sr. Secondary School.
Andrews Ganj’ New Delhi-49, and now are party to such
unfair means with Roll No. 3521 who had debarred for a
period of 10 years by the UPSC.

The invigilators and the supervisors are now parties to
the case of unfairness as per the comments of UPSC
given in its counter affidavit on 29.7.2005.

2. Copies of replies by the invigilators and the supervisor to
their said show cause to the authority.

3. Copies of proceeding initiated against the invigilator and
the supervisor who were on duty in the aforesaid room
no. 30 on 14.6.2004 & made party to the case of unfair
means with Roll No. 3521 who had debarred for a period
of 10 year by the UPSC.”

The appeal was heard through videoconference on 2-6-2010. The
following are present.

Appellant (at NIC Studio, Jhajjar)
Shri S.K. Rathee
Respondents
Shri G. R. Raiger, US, UPSC
Shri Rameshwar Dayal, DS & CPIO
Shri Parveen Sharma, SO
Shri Naresh Kaushik, Advocate
Ms. Manisha Badoni, Advocate

Learned counsel for respondent Shri Naresh Kaushik submitted that this
was the first case of its kind before the UPSC on which they would wish to take
a policy decision in a matter of this nature. He, however, clarified that the
student was debarred not because he was found during the examination to
have used unfair means but from the suspicious entries detected at the time of
evaluating the answer sheets.

On this basis appellant Shri S.K. Rathee argued that since the allegation
of unfair means was made only months after the examination, even though the
examination was conducted under close supervision, he required to know what
action was taken against the officials responsible for scrutinizing the conduct of
candidates appearing in the examination hall. However, he had no objection to
a short adjournment as requested by learned counsel for respondents. For this
reason the request for adjournment was agreed to, and the appeal scheduled to
be heard on 15th July 2010 at 4.30 p.m. by videoconferencing.

Accordingly the appeal was heard once more with videoconference on
15-7-2010. The following are present:

Appellant (at NIC Studio, Jhajjar)
Shri S.K. Rathee
Respondents at CIC Chamber, New Delhi
Shri Rameshwar Dayal, DS & CPIO
Shri G. R. Raiger, US, UPSC
Shri Naresh Kaushik, Advocate

Learned Counsel for respondents Shri Naresh Kaushik presented a copy
of the counter affidavit on behalf of respondent presented in the Central
Administrative Tribunal, Principal Bench, New Delhi in the case of Shri Govind
Singh Rathee vs. Union Public Service Commission. In his prayer before us
in second appeal quoted by us above, the invigilators and the supervisors are
claimed to be “now parties to the cases of unfairness as per the comments of
UPSC given in its counter affidavit on 29.7.2005”. Learned Counsel Shri Naresh
Kaushik submitted that this contention is based on a misreading of the Counter
Affidavit, which states as follows: –

“In this connection, it would be worthwhile to mention that report
of Invigilators/ Supervisor is not a precondition for establishing
the charge of copying. Furthermore, wherein Invigilators
themselves may become party to such copying, there would be
no such report.”

He clarified that as he has argued in the last hearing the detection of
copying did not come during the conduct of the examination but was detected
subsequently by the examiners in inspecting the answer sheet. For this reason
no case was made out against the invigilators and supervisor and they are not
parties of the case as per the comments of the UPSC in the counter affidavit,
which were simply in reference to a hypothetical question, were they to have
been party.

DECISION NOTICE

It would appear that appellant Shri S. K. Rathee has taken this matter to
the level of CAT and the High Court, which has also inspected the impugned
answer sheet in the present case. The only issue in the present case is
regarding action taken against invigilators and supervisors on duty at the time of
the conduct of the examination, assuming their culpability. It now stands
clarified that no such action has been taken because the invigilators and
supervisors were not considered party, as wrongly assumed by appellant Shri
Rathee. Nevertheless the refusal of this information to Shri S. K. Rathee in the
first instance has unnecessarily resulted in this matter being prolonged through
appeal and second appeal, because the refusal in itself would have raised
suspicion that some action had been taken, which the public authority was loath
to disclose.

Learned Counsel for respondent Shri Naresh Kaushik submitted that
the UPSC has indeed taken a policy decision on matters of this nature and
decided that the identity of invigilators and supervisors must be kept
confidential. In this case, however since there was no involvement of these
parties, and no show cause notices issued of which copies could be provided,
it is not understood why the plea of exemption under section 8 (1)(e) was
required to be taken. The order of Joint Secretary (E) Shri K. S. Bariar of
10.11.2008 having been made without application of mind is therefore set
aside. Respondents have themselves now disclosed the information sought to
appellant Shri S. K. Rathee in the hearing. The appeal is, therefore, allowed.
There will be no cost.

Announced in the hearing. Notice of this decision be given free of cost to
the parties.

(Wajahat Habibullah)
Chief Information Commissioner
15-7-2010

Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO
of this Commission.

(Pankaj K.P. Shreyaskar)
Joint Registrar
15-7-2010