GreaterKashmir.com:Faheem Aslam: Saturday, Aug 20, 2011.
Srinagar, Aug 19: In a significant judgment, the State Information Commission has allowed candidates to “go through” their answer keys and OMR sheets at the J&K State Public Service Commission, which would so far deny access to the material citing “lack of provision.”
In a fresh ruling in case of two complaints with regard to the post of Public Law Officers, the Chief Information Commissioner, GR Sufi, has ruled: “It is hereby ordered that the candidates/appellants will be allowed to go through their answer keys in the presence of authorities duly authorized by the PSC as the finalization of selection is yet to be made, as informed by the Public Information Officer of the PSC, Gulzar Ahmad. It is further ordered that the appellants will not take photo copies of their answer keys but they have to be provided enough and sufficient time to study their answer keys.”
While the selections of Law Officers are pending before the High Court, the CIC ruled that “once the Court disposes off the writ petition, the copies of the answer keys/OMR Sheets duly certified by the PSC should be given to the appellants.”
THE CASE:
The information seekers, Tanveer Chowdhary and Javeed Ahmad, had appeared in an examination conducted by PSC for the post of Public Law Officers on February 27 this year. The result of screening test was declared on March 18. However the final selection was withheld because of intervention of High Court on a writ petition filed by number of candidates.
Meanwhile, the applicants filed applications under the RTI Act of 2009 before the PIO of the PSC on March 23. The PIO, Gulzar Ahmad, however denied the information citing “the Commission did not provide the answer keys of screening test and OMR Sheets. As such information was not provided as per the J&K Public Service Commission (Conduct of Examinations) Rules - 2005.”
The complainants did not file a First Appeal before the First Appellate Authority, who happens to the PSC Secretary on the plea that the decision of the First Appellate Authority was already known to the applicants.
The PIO also referred to the directions received from the First Appellate Authority. The candidates finally approached the SIC with a complaint.
The Commission passed an order on 20.05.2011 advising the complainants to file First Appeal before the First Appellate Authority (Secretary) with an advisory to condone the delay in filing the First Appeals in view of the reasons prevalent in the case.
The Secretary was advised to dispose of the appeals as expeditiously as possible. He, however, again adhered to the earlier stand of the PIO that the answer keys will not be given to the candidates as there was no provision for the same.
The copies of OMR sheets of other candidates were also denied to the complainants on the plea that it is “third party information.” Another plea taken by the First Appellate Authority for rejecting the complainants request is that the High Court of J&K was seized with the issue arising from a writ petition titled “Vougeshwar Singh & Ors in SWP No. 760/2011”. It was held by the First Appellate Authority that the whole matter is subjudice, therefore, answer keys will not be given to the complainants.
SECOND APPEAL:
The complainants filed Second Appeal before the SIC on June 16, asserting that State RTI Act has an overriding effect over other laws, rules and procedures, therefore, applications made under the Act cannot be rejected on the plea that PSC Rules do not allow the disclosure of information. The complainants argued that pendency of writ petition is no ground for the refusal of information and there is no express direction by the High Court for not providing the information.
THE HEARING:
The CIC has ruled out that “during hearing my attention was also invited to the Supreme Court’s latest decision in a Civil Appeal No. 6454 of 2011 (Arising out of SLP (C) No. 7526/2009 in the case titled Central Board of Secondary Education & Anr. V/S Aditya Bandopadhyay & Ors. In their written submissions dated 28.04.2011 the JK PSC again stressed the fact that the Central Information Commission in one of its earlier decision had held that institutions having an established system as fool proof as that can be and which by their own rules and regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice, cannot therefore disclose the evaluated answer sheets/OMR sheets to the Information Seekers.”
THE JUDGEMENT:
“I have considered the rival submissions and found no merit in the respondents submission that the Rules made for conducting of examinations and other regulations of J&K PSC for prohibiting the disclosure of answer keys/OMR Sheets. It is again reiterated that the State Right to Information Act, 2009 takes precedence over other Rules and Regulations. There is express direction in Section 19 of State Right to Information Act, 2009 in this regard,” Sufi ruled.
With regard to assertion of the First Appellate Authority that the High Court of J&K has prohibited the J&K Public Service Commission for finalizing the results, the CIC ruled that “it is seen that the Court has not made any express prohibition for providing any information under RTI Act. Disclosure of answer keys/OMR Sheets also does not amount to contempt of court.”
Pertinently the High Court in its decision dated 08.04.2011 has rather directed the J&K Public Service Commission to go ahead with the selection for the post of Public Law Officers/ Assistant Legal Remembrance but shall not finalize the same till the PSC is directed to go for final selection. “The disclosure of keys under the condition laid down above to the candidates will not adversely affect the disclosure of final selection,” the CIC ruled, also arguing that Supreme Court in the case cited above has expressly upheld the rights of Information Seekers under the same facts and circumstances of the case to obtain copies of examination evaluated papers. On the plea that it is third party information and in view of Section 11 cannot be provided, the CIC ruled that the third party information cannot be rejected simply because it pertains to third party.
“A written notice of five days has to be given to the third party and within ten days the objections, if any, have to be sought and it is the duty of appellate authority to see whether information should be disclosed or not in the public interest and if it is found that public interest overweighs the third party information is still to be disclosed in accordance with the provisions of Section 11 of State Right to Information Act, 2009. However, notwithstanding this, the appellants have not pressed this ground of appeal, hence this ground of appeal is dismissed,” he ruled.
In a fresh ruling in case of two complaints with regard to the post of Public Law Officers, the Chief Information Commissioner, GR Sufi, has ruled: “It is hereby ordered that the candidates/appellants will be allowed to go through their answer keys in the presence of authorities duly authorized by the PSC as the finalization of selection is yet to be made, as informed by the Public Information Officer of the PSC, Gulzar Ahmad. It is further ordered that the appellants will not take photo copies of their answer keys but they have to be provided enough and sufficient time to study their answer keys.”
While the selections of Law Officers are pending before the High Court, the CIC ruled that “once the Court disposes off the writ petition, the copies of the answer keys/OMR Sheets duly certified by the PSC should be given to the appellants.”
THE CASE:
The information seekers, Tanveer Chowdhary and Javeed Ahmad, had appeared in an examination conducted by PSC for the post of Public Law Officers on February 27 this year. The result of screening test was declared on March 18. However the final selection was withheld because of intervention of High Court on a writ petition filed by number of candidates.
Meanwhile, the applicants filed applications under the RTI Act of 2009 before the PIO of the PSC on March 23. The PIO, Gulzar Ahmad, however denied the information citing “the Commission did not provide the answer keys of screening test and OMR Sheets. As such information was not provided as per the J&K Public Service Commission (Conduct of Examinations) Rules - 2005.”
The complainants did not file a First Appeal before the First Appellate Authority, who happens to the PSC Secretary on the plea that the decision of the First Appellate Authority was already known to the applicants.
The PIO also referred to the directions received from the First Appellate Authority. The candidates finally approached the SIC with a complaint.
The Commission passed an order on 20.05.2011 advising the complainants to file First Appeal before the First Appellate Authority (Secretary) with an advisory to condone the delay in filing the First Appeals in view of the reasons prevalent in the case.
The Secretary was advised to dispose of the appeals as expeditiously as possible. He, however, again adhered to the earlier stand of the PIO that the answer keys will not be given to the candidates as there was no provision for the same.
The copies of OMR sheets of other candidates were also denied to the complainants on the plea that it is “third party information.” Another plea taken by the First Appellate Authority for rejecting the complainants request is that the High Court of J&K was seized with the issue arising from a writ petition titled “Vougeshwar Singh & Ors in SWP No. 760/2011”. It was held by the First Appellate Authority that the whole matter is subjudice, therefore, answer keys will not be given to the complainants.
SECOND APPEAL:
The complainants filed Second Appeal before the SIC on June 16, asserting that State RTI Act has an overriding effect over other laws, rules and procedures, therefore, applications made under the Act cannot be rejected on the plea that PSC Rules do not allow the disclosure of information. The complainants argued that pendency of writ petition is no ground for the refusal of information and there is no express direction by the High Court for not providing the information.
THE HEARING:
The CIC has ruled out that “during hearing my attention was also invited to the Supreme Court’s latest decision in a Civil Appeal No. 6454 of 2011 (Arising out of SLP (C) No. 7526/2009 in the case titled Central Board of Secondary Education & Anr. V/S Aditya Bandopadhyay & Ors. In their written submissions dated 28.04.2011 the JK PSC again stressed the fact that the Central Information Commission in one of its earlier decision had held that institutions having an established system as fool proof as that can be and which by their own rules and regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice, cannot therefore disclose the evaluated answer sheets/OMR sheets to the Information Seekers.”
THE JUDGEMENT:
“I have considered the rival submissions and found no merit in the respondents submission that the Rules made for conducting of examinations and other regulations of J&K PSC for prohibiting the disclosure of answer keys/OMR Sheets. It is again reiterated that the State Right to Information Act, 2009 takes precedence over other Rules and Regulations. There is express direction in Section 19 of State Right to Information Act, 2009 in this regard,” Sufi ruled.
With regard to assertion of the First Appellate Authority that the High Court of J&K has prohibited the J&K Public Service Commission for finalizing the results, the CIC ruled that “it is seen that the Court has not made any express prohibition for providing any information under RTI Act. Disclosure of answer keys/OMR Sheets also does not amount to contempt of court.”
Pertinently the High Court in its decision dated 08.04.2011 has rather directed the J&K Public Service Commission to go ahead with the selection for the post of Public Law Officers/ Assistant Legal Remembrance but shall not finalize the same till the PSC is directed to go for final selection. “The disclosure of keys under the condition laid down above to the candidates will not adversely affect the disclosure of final selection,” the CIC ruled, also arguing that Supreme Court in the case cited above has expressly upheld the rights of Information Seekers under the same facts and circumstances of the case to obtain copies of examination evaluated papers. On the plea that it is third party information and in view of Section 11 cannot be provided, the CIC ruled that the third party information cannot be rejected simply because it pertains to third party.
“A written notice of five days has to be given to the third party and within ten days the objections, if any, have to be sought and it is the duty of appellate authority to see whether information should be disclosed or not in the public interest and if it is found that public interest overweighs the third party information is still to be disclosed in accordance with the provisions of Section 11 of State Right to Information Act, 2009. However, notwithstanding this, the appellants have not pressed this ground of appeal, hence this ground of appeal is dismissed,” he ruled.
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