Why PSC deleted its Rule 12 (B) ?

GreaterKashir: Dr. Raja Mujaffar Bhaatt: Srinagar: Sunday, Dec 10, 2017.

Since the enactment of RTI Act, Jammu & Kashmir Public Service Commission (PSC) is being accused of disrespecting this law. In majority of cases the PSC has either not at all responded to RTI applicants or has denied the information quoting its standing orders. On October 26th Chief Information Commissioner (CIC) Mr Khurshid Ahmad Ganai while hearing an RTI appeal said that PSC’s internal orders violates section 19 of J&K RTI Act 2009 , wherein RTI has an overriding effect. CIC further directed the Public Information Officer (PIO) of J&K PSC to provide certified copies of OMR sheet and Answer Key to an information seeker who was earlier denied the same. Information seeker had appeared in a written test for the post of Assistant Professor (Urdu) in Higher Education Department, but was declared unsuccessful. 

Background of Case : 

An information seeker namely Maida Begum had sought information under J&K RTI Act 2009 from Public Service Commission on 21.2.2017. Information seeker sought details of answer key of the written test held on 04.12.2016 for the post of Assistant Professors. She also sought xerox copy of Optical Mark Recognition (OMR sheet ) as well. The PIO did not provide her information within stipulated time of 30 days and subsequently she filed 1st appeal on 10th April 2017 before Secretary of PSC who is also the First Appellate Authority (FAA) of PSC. Secretary (FAA) too failed to adjudicate the first appeal and finally Maida Begum sought intervention of the State Information Commission (SIC) by filing 2nd appeal before the Commission. She requested SIC through her appeal to direct PSC to provide her information as sought under RTI Act. Initially the 2nd appeal was listed for hearing before SIC on Sept 11th 2017 and then hearing was fixed on Sept 13th . On October 26th 2017, the appeal was listed for final hearing. PIO of J&K PSC Mr Ghanshyam Singh was present during the hearing . Counsel for the appellant Advocate Nadeem Bhat was heard through video conferencing from SIC Jammu . During the hearing appellant’s counsel reiterated his demand for being provided the copy of Answer Key. In response, PIO again showed his reservation in furnishing the same. He relied on the PSC Notification number: 07 dated 14.03.2016 by virtue of which Rule 12(B) of the J&K PSC ie Conducting of Examination Rules, 2005 was deleted. As per rule 12 (B) the answer key was to be uploaded soon after any of the written exam conducted by PSC. Advocate Nadeem Bhat submitted that rules and procedures of J&K PSC cannot override the provisions of RTI law. He added that Section 19 of J&K RTI Act 2009 has an overriding effect over all other laws including J&K Official Secrets Act and PSC’s rules as well. 

CIC’s final order :

On October 26th 2017 Chief Information Commissioner (CIC) issued final order wherein he set aside PSC’s plea and directed PSC to provide answer key and OMR sheets to information seeker Maida Begum. CIC reiterated the fact that Section 19 of the J&K RTI Act, 2009 gives the RTI Act an overriding effect. He added that disclosure of Answer key after the result of the examination is announced doesn’t seem to fall under any of the exemption sections and subsections of J&K RTI Act 2009 under section 8 & section 9 which relates to copyright infringement. CIC’s order reads as : “Section 8(1)(e) exempts from disclosure of such ‘ information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information’. OMR Sheets and the Answer key cannot be said to be held in fiduciary capacity by the examination conducting authority like the J&K PSC after the results of the examination have been finally announced. Keeping in view the Hon’ble Supreme Court judgment and the intent of Section 19 of the J&K RTI Act, 2009 and in terms of powers vested in the State Information Commission (SIC) under Section 16 of the Act, the PIO, J&K PSC is directed to provide a copy each of the OMR sheet of the appellant Maidah Begum and the Answer Key to the appellant as expeditiously as possible within a maximum period of 30 days from the date of receipt of this order, if the results have been announced”

Conclusion : 

If Rule 12 (B) was inserted by J&K PSC on 13.08.2015 enabling transparency in conduct of examination and proactive release of answer paper key, what prompted PSC to issue another order within a period of just 7 months deleting this transparency provision? Why didn’t legal experts in PSC advise the Chairman and Members of PSC that by deleting the 12 (B) provision, PSC’s fresh order dated 14.03.2016 will violate and override State RTI Law ? If the information pertaining to OMR sheet ,answer key or even answer papers are continued to be held as secret document even after the results are out, then the aggrieved candidates will have nowhere to go to seek redressal. Allowing inspection or providing a copy of own OMR sheet without the Answer key is meaningless as there will be no way for the information seeker to evaluate or cross check his / her own performance / marks and this is in-fact mentioned in the CIC’s order as well.