Arif Ahmed Choudhury vs Assam Public Service Commission And 2 Ors

1) Heard Mr. P.K. Roy Choudhury and Mr. G.Z. Ahmed, learned counsel for the petitioners. Also heard Mr. T.J. Mahanta, learned senior counsel,

assisted by Mr. P.P. Dutta, standing counsel for APSC and Mr. G. Bordoloi, learned Govt. Advocate.

W.P.(C) 3581/2019

2) The petitioner states that he is a post graduate in law and that having qualified in the Combined Competitive Examination, 2009 conducted by

APSC, he was appointed as Inspector of Taxes w.e.f. 19.08.2003 and at the time of filing the writ petition, he was posted as Inspector of Taxes, Unit-

C, Guwahati, which is a Pay Band-3 post. The case of the petitioner is that being eligible, he applied for Assam Civil Services and Allied Services

under Combined Competitive Examination, 2016 conducted by APSC for section to Pay-Band-4 posts. The petitioner was allotted Roll No.

091900124. The preliminary examination was held on 02.07.2017, wherein he had qualified and he appeared in the Main Examination on 18.02.2018

for General Studies, on 27.02.2018 for Persian-I and II, on 10.03.2018 for Political Science-I and II and on 18.03.2018 for General English. The

petitioner qualified the Main Examination and was given a call letter dated 15.10.2018 for appearing in viva-voce interview for Assam Civil Services

and Allied Services under Combined Competitive Examination, 2016, which was scheduled on 30.10.2018. However, the name of the petitioner did not

figure in the select list. Thereafter, by submitting a RTI application dated 21.11.2018 before the State Public Information Officer, APSC, the petitioner

had applied for marks obtained by him in his papers of General Studies, Persian-I and II, Political Science-I and II and General English as well as in

viva-voce examination along with photocopy of answer scripts and the grand total marks obtained by all successful candidates of Combined

Competitive Examination, 2016.

However, the Secretary, APSC had uploaded the impugned notification no. 230PSC/GRC-1/2017-18 dated 27.12.2018 in its website, inter alia,

providing that in terms of order dated 06.09.2018, passed by the Supreme Court of India in the case of Angesh Kumar & Ors. Vs. Union Public

Service Commission & Anr., Review Petition (Civil) Diary No. 24763/2018 in Civil Appeal Nos. 6159-6162 of 2013 decided on 06.09.2018,

[hereinafter referred to as Angesh Kumar (II)] no photocopy of the answer scripts of candidates of Combined Competitive Examination, 2016 can be

issued. However, subsequently, the marks obtained by the petitioner were uploaded on 14.02.2019, and he had obtained 839 marks, but the marks

obtained by successful candidates were not uploaded.

W.P.(C) 1374/2019

3) The case of the petitioner is that he had secured M.A. (English) degree with first class from Jawaharlal Nehru University in the in the year 2002.

Thereafter, he had cleared his Ph.D. (English) in the year 2017 from Gauhati University. The petitioner had also cleared the National Eligibility Test

(NET) for Lectureship in the year 2014. The petitioner is working as Assistant Professor in the Department of English in Bodoland University from

24.09.2012 onwards. The petitioner applied for APSC Combined Competitive Examination (Prelims), 2016 and results were declared vide notification

dated 25.10.2017, wherein the petitioner with Roll No. 131200042 was declared qualified. The petitioner appeared in APSC Combined Competitive

Examination (Mains), 2016 from 18.02.2018 to 25.03.2018 and the petitioner was declared successful vide notification dated 01.10.2018. The

petitioner was called for viva-voce examination on 03.11.2018. The final results were declared vide notification dated 16.11.2018 and the

petitioner’s roll number did not figure as successful candidate. Accordingly, on 17.11.2018, the petitioner sought for the following information by

his RTI application, viz., (a) Marks allotted to Roll No. 131200042 in each paper, (b) Marks awarded to Roll No. 1312000042 in viva, (c) Cut off

marks of each category (Gen/OBC/SC/ST/PH, etc.) in Mains and Final List, (d) Marks allotted to qualified candidates and their category

(Gen/OBC/SC/ST/PH, etc.), and (e) Photocopies of OMR Answer Sheet of English, General Studies, English (Optional), Education (Optional) (Roll

No. 131200042). The APSC declared the marks of the candidates who had appeared in the viva-voce test by publishing it in the website of APSC and

the petitioner secured the following marks, viz., General Study (158), General English (160), Edu-I (122), Edu-II (150), Eng-I (154), Eng-II (140),

Grand Total- (864).

W.P.(C) 1555/2019:

4) The case of the petitioner is that he is a MA in Arts (English) from Institute of Open and Distance Learning in the year 2010. The petitioner is

working as Post Graduate Teacher in the English subject at Lakhganj H.S. School, Dhubri from 02.11.2017. The petitioner applied for APSC

Combined Competitive Examination (Prelims), 2016 and results were declared vide notification dated 25.10.2017, wherein the petitioner with Roll No.

112500545 was declared qualified. The petitioner appeared in APSC Combined Competitive Examination (Mains), 2016 from 18.02.2018 to

25.03.2018 and the petitioner was declared successful vide notification dated 01.10.2018. The petitioner was called for viva-voce examination on

03.11.2018. The final results were declared vide notification dated 16.11.2018 but his roll number did not figure as successful candidate. Accordingly,

on 11.02.2019, the petitioner had submitted a representation to the APSC authorities for furnishing him photocopy of the answer sheet, cut off mark

for CCE, 2016, cut of marks of each category (Gen/OBC/SC/ST/PH, etc.) in mains and final exams, photocopy of his answer sheets of General

English, General Study, English (Optional) and Education (Optional). Subsequently, the APSC declared the marks of the candidates who had appeared

in the viva-voce test by publishing it in the website of APSC and the petitioner secured the following marks, viz., General Study (218), General English

(125), Edu-I (156), Edu-II (143), PSc-I (108), PSc-II (106), Grand Total- (856).

5) Thus, by filing this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for setting aside and quashing of

notification no. 230PSC/GRC-1/2017-18 dated 27.12.2018 issued by the Secretary, Assam Public Service Commission (hereinafter referred to as

‘APSC’ for short) to the extent it declares that the APSC cannot furnish photocopy of answer scripts to the candidates of Competitive (Main)

Examination, 2016, for a direction to the APSC to furnish photocopy of answer scripts to the petitioner and fro a direction to the APSC to disclose to

the petitioner the marks obtained by candidates who were recommended for appointment by the APSC in its website as per notification dated

27.12.2018.

6) The learned counsel for the petitioners have submitted that the petitioners are meritorious and are well placed in the society. It is also submitted that

the petitioners are Master Degree holders. It is submitted that vide notification no. 165PSC/RR-1/87-88 dated 02.08.2010, the Assam Public Service

Commission (Procedure and Conduct of Business) Rules, 2010 was notified by the APSC which was holding the field as on the date when the

petitioners had submitted their application for being furnished with a copy of their answer scripts. It is submitted that this writ petition would be

maintainable to enforce the said Rules. It is submitted that as per Clause 70 thereof, provides for preservation of answer scripts, which is not for

nothing, but the underlying purpose would be to provide copy of answer scripts. Moreover, it is submitted that by an interim order dated 18.03.2019,

passed in W.P.(C) 1555/2019, the respondent nos. 2 and 3 were directed not to destroy the answer scripts of the petitioner. Relying on paragraphs 9

and 10 of the case of Union of India Vs. Angesh Kumar, (2018) 4 SCC 530 [hereinafter referred to as Angesh Kumar (I)] it is submitted that the

answer scripts of the petitioners do not contain any sensitive information. It is further submitted that in the present case in hand, the APSC does not do

scaling of marks as is being done by UPSC and therefore, there was no impediment in providing copy of answer scripts. It is submitted that the

Division Bench of this Court in the case of Hamen Bharali & Ors. Vs. State of Assam & Ors., (2010) 4 GLT 522: (2009) 0 Supreme(Gau) 722, had

allowed the writ petition by directing the APSC to furnish copy of answer scripts and accordingly, it is submitted that the said ratio would be binding on

this Single Bench. It is also submitted that in the case the Court is of the view that providing of copy of answer scripts would expose the identity of the

examiners, orders may be passed to enable the APSC to mask the portion containing signatures or marking by paper examiners. In this regard,

reliance is plced on the case of Kerala Public Service Commission & Ors. Vs. State Information Commission & Ors., (2016) 3 SCC 417.

7) Per contra, the learned senior counsel for the APSC has heavily relied on para 5 of the case of Angesh Kumar (I) (supra). It is submitted that the

petitioners in W.P.(C) 3581/2019 and 1374/2019 had submitted their RTI applications on 21.11.2018 and 17.11.2018 respectively and the petitioner in

W.P.(C) 1555/2019 had submitted a representation on 11.02.2019. However, the case of Angesh Kumar (I) (supra) was decided on 20.02.2018,

which was followed by the order dated 06.09.2018 passed by the Supreme Court of India in the review petition, being Angesh Kumar (II), which was

the basis of issuing the impugned APSC notification dated 27.12.2018.

8) At the outset, it is deemed appropriate to mention herein that it is the admitted case of the petitioners that the marks obtained by them in the APSC

CCE, 2016 had been uploaded by the APSC in their website. Moreover, as per the order sheet dated 18.03.2021, this Court had recorded that

pursuant to the order dated 22.02.2021, passed by this Court, the learned standing counsel for the APSC had produced the extract of marks obtained

by the petitioners herein in the viva voce test. However, the learned counsel for the petitioners were not ready to be satisfied with the disclosure of

marks obtained by the petitioner in the viva voce test and had made their respective submissions in support of the prayers made in these writ petitions.

9) It is seen that the Assam Public Service Commission (Procedure and Conduct of Business) Rules, 2010 does not contain any Rules relating to

providing of copy of answer script to the candidates. Rule 70 thereof, on which the petitioners have relied is quoted below:-

“70. Preservation of scripts

(i) The used answer scripts shall be preserved atleast for six months from the date of declaration of results.

(ii) In case of candidates whose results are challenged in the Court, their scripts shall be preserved till the final disposal of the case or cases.

(iii) When the scripts are destroyed, it shall be done so in presence of the Secretary and the Principal Controller of Examinations in the office premises

and records of such matters shall be maintained.

(iv) The Commissioner shall not entertain any request for re-examination of answer scripts form candidates or form any other person.â€​

10) From the aforesaid Rule 70, it appears that generally the answer scripts is to be preserved till 6 (six) months, and if the result of any candidate is

challenged before the Court, Rule 70(ii) provides for preserving the answer scripts till final disposal of the case(s). Therefore, from Rule 70 of the

aforesaid Rules, it cannot be culled out that the purpose of preserving answer scripts is to facilitate issuance of copy under RTI Act.

11) From the scheme of RTI Act, it appears that Sections 3 and 6 of the RTI Act confer right to information, apart from statutory obligation to provide

specified information under Section 4. However, Sections 8, 9 and 11 provide for exemption from giving of information as stipulated therein.

12) In the case of Angesh Kumar (I) (supra), the Supreme Court of India had observed as follows:-

Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of

sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be

furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as

pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest

requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule

or practice can be enforced. In the present case, direction has been issued without considering these parameters.

13) It is not disputed by the learned senior standing counsel for APSC that unlike UPSC, the APSC does not practice scaling of marks. However, the

other problems in showing evaluated answer sheets would be similar to those morefully referred in paragraph 8 of the case of Angesh Kumar (I)

(supra), where the Supreme Court of India had extracted the relevant paragraph of the case of Prashant Kumar Chakkarwar Vs. UPSC, (2013) 12

SCC 489. The learned counsel for the petitioner had submitted that paragraph-10 of the case of Angesh Kumar (I) had made an exception to exams

other than UPSC. The Court is unable to accept the said contention because in paragraph-10, reference is made to exams conducted by other

academic bodies and there is nothing on record to show that APSC is an academic body.

14) Under the circumstances, as the impugned notification dated 27.12.2018 is based on the ratio laid down in the case of Angesh Kumar (I) (supra)

and Angesh Kumar (II) (supra), the cases cited by the learned counsel for the petitioner is distinguishable on facts. Therefore, following the case of

Angesh Kumar (I) (supra), where direction by High Court for issuance of answer script was interfered with, the present writ petition fails and are

dismissed. No interference is called for in respect of the APSC notification no. 230PSC/GRC-1/ 2017-18 dated 27.12.2018.

15) The parties are left to bear their own cost.

16) Before parting with the records, the Court is inclined to provide that the APSC and its authorities, officials and staff shall not destroy the answer

scripts of the petitioners in these three writ petition for a period of 6 (six) weeks from the date of this order.