Kusum Meena @APPELLANT@Hash State of Rajasthan & Ors.

The petitioner has preferred this writ petition claiming the following reliefs:

“ (I) By appropriate writ order or direction, the respondents may kindly be directed to provide the copy of OMR sheet for theSanskrit & GK

subjects to the petitioner.

By appropriate writ order or direction, the remark inthe marksheet for the examination as ‘Not selected’ may kindly be quashed and set

aside.

By appropriate writ order or direction, therespondents may kindly be directed to recheck the OMR sheets for the Sanskrit and GK subjects.

By appropriate writ order or direction, therespondents may kindly be directed to declare the petitioner as selected for further selection process.

By appropriate writ order or direction, therespondents may kindly be directed to afford the petitioner appointment on the post of in accordance with

preference and merit will all consequential benefits.

Any other order or direction, which this Hon’ble Courtdeemed just and proper be passed in favour of the petitioner.â€​

Brief facts of this case, as noticed by this Court, are that the respondents issued an advertisement dated 13.07.2016 initiating selection process for

recruitment to the post of Teacher Grade-II under the Rajasthan State Education Service Rules, 1971 and Rules of 2014 framed thereunder. The

petitioner appeared in the examination on 30.06.2017, result whereof was declared on 23.02.2018.

The limited prayer of the petitioner is that the petitioner had moved an application on 19.02.2018 under the Right to Information Act, 2005

requesting for furnishing a copy of her OMR sheet for the subjects Sanskrit and GK but the same has been refused by order dated 15.03.2018.

Learned counsel for the petitioner has relied upon the judgment passed by Hon’ble Apex Court in Kerala Public Service Commission & Ors.

Vs. The State Information Commission & Ors. reported in AIR 2016 SC 711, the relevant portion reads as under:-

“9. In the present case, the PSC has taken upon itself in appointing the examiners to evaluate the answer papers and as such, the PSC and

examiners stand in a principal-agent relationship. Here the PSC in the shoes of a Principal has entrusted the task of evaluating the answer papers to

the Examiners. Consequently, Examiners in the position of agents are bound to evaluate the answer papers as per the instructions given by the PSC.

As a result, a fiduciary relationship is established between the PSC and the Examiners. Therefore, any information shared between them is not liable

to be disclosed. Furthermore, the information seeker has no role to play in this and we don't see any logical reason as to how this will benefit him or

the public at large. We would like to point out that the disclosure of the identity of Examiners is in the least interest of the general public and also any

attempt to reveal the examiner's identity will give rise to dire consequences. Therefore, in our considered opinion revealing examiner's identity will only

lead to confusion and public unrest. Hence, we are not inclined to agree with the decision of the Kerala High Court with respect to the second

question.

In the present case the request of the information seeker about the information of his answer sheets and details of the interview marks can be and

should be provided to him. It is not something which a public authority keeps it under a fiduciary capacity. Even disclosing the marks and the answer

sheets to the candidates will ensure that the candidates have been given marks according to their performance in the exam. This practice will ensure a

fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams, but, the request of the information

seeker about the details of the person who had examined/checked the paper cannot and shall not be provided to the information seeker as the

relationship between the public authority i.e. Service Commission and the Examiners is totally within fiduciary relationship. The Commission has

reposed trust on the examiners that they will check the exam papers with utmost care, honesty and impartially and, similarly, the Examiners have faith

that they will not be facing any unfortunate consequences for doing their job properly. If we allow disclosing name of the examiners in every exam,

the unsuccessful candidates may try to take revenge from the examiners for doing their job properly. This may, further, create a situation where the

potential candidates in the next similar exam, especially in the same state or in the same level will try to contact the disclosed examiners for any

potential gain by illegal means in the potential exam.â€​

Learned counsel for the petitioner has relied upon the judgment passed by this Hon’ble Court in M/s Utkarsh Classes & Ors. Vs. Stae of

Rajasthan & Ors. (S.B. Civil Writ Petition (P.I.L.) No.12720/2011) decided on 25.10.2012, the relevant portion reads as under:-

“In view of the stand of RPSC, learned counsel Dr. PS Bhati has submitted that the relief against the RPSC stands satisfied. However, other

examinations are also being conducted by the other respondents. They are also bound to follow same procedure.

Mr. I.S. Pareek learned counsel appearing for the other respondents has also submitted that the y will be publishing the syllabus at the time of initiation

of the recruitment process and in any case, in reasonable time well before holding the examination. It is also submitted that in case where the question

papers are not provided, they shall supply the question papers and they will put the question papers on website as well as publish model key answers

of the objective type questions, on the similar basis as decided by the RPSC in view of the aforesaid decision of Hon’ble Supreme Court.

In view of the submission made by the counsels appearing for the respondents, it is ordered that let in future, the respondents shall supply the syllabus

at the time of initiation of recruitment process and shall also put the question papers on website in case, they are not permitted to be carried by the

candidates and shall also publish the model key answers of objective type question, if any, on their website before or at the time of declaration of the

result The writ application is disposed of accordingly.â€​

Learned counsel for the petitioner has relied upon the judgment passed by Hon’ble Apex Court in Centre for Public Interest Litigation Vs.

Registrar General of the High Court of Delhi, reported in (2017) 11 SCC 456, the relevant portion reads as under:-

“5. Be it noted, six suggestions have been given and out of six, two suggestions have been accepted by the Respondent. The suggestions which

have been accepted, are:

(a) In the Preliminary exams, the OMR sheets be ordered to be filled up in pen and not pencil;

(d) The candidates be provided a copy of their answer scripts under the RTI and as per two Supreme Court judgments of Central Board of Secondary

Education (CBSE) v. Aditya Bandopadhyay SC 2011 and Kerala Public Service Commission v. State Information Commission SC 2016.

In course of hearing, the acceptability of the othersuggestions have been considered. Having heard the learned Counsel for the parties, apart from

the suggestions that have been accepted by the High Court, we think the following suggestions should also be followed by the High Court. They are:

(i) In the Preliminary examination, the names ofsuccessful candidates be mentioned.

(ii) In checking of the mains papers, the procedure laiddown in Sanjay Singh and Anr. v. U.P. Public Service Commission, Allahabad and Anr.

MANU/SC/0563/2007 : (2007) 3 SCC 720, Prashant Ramesh Chakkarwar v. U.P.S.C. and Ors. MANU/SC/0347/2013 : (2013) 12 SCC 489 and

Sujasha Mukherji MANU/SC/0185/2015 : 2015 AIR SCW 1582 shall be kept in view.

We are sure that the High Court, while conductingexaminations in future, shall keep the aforesaid suggestions in view.

Before parting with the case, we may state thatsuggestions have been given so that the candidates, who participate in the examination must have

intrinsic faith in the system of examination and simultaneously, they must also appreciate that a candidate, while appearing in an examination, has

his/her own limitation. Faith in an institution and acceptance of individual limitation are the summum bonum of a progressive civilised society. We say

no more on this score.

If this litigation has come to this end 5 in such amanner, it obligates us to put it on record our deep appreciation for Justice P.V. Reddy, formerly a

Judge of this Court, who has devoted his time selflessly and also not caused any kind of financial burden to the High Court. We have said so, as we

are disposed to think, selfless service to institutions is written in red letters in history and is remembered by the posterity. It never gets washed away in

the sands of time.

The writ petitions are disposed of accordingly.Pending interlocutory applications, if any, are disposed of. There shall be no order as to costs.â€​

Learned counsel for the petitioner Shri Shubham Modi has submitted that the petitioner had received refusal of furnishing of the OMR sheet well

after the result of the written examination were announced, and therefore, has the right to have such copies under the Right to Information Act and

for the sake of transparency and confidence amongst the candidates at large, the decision taken by the RPSCÂ to the effect that furnishing the OMR

sheet / answer sheet, at this stage, before completion of selection process, is not appropriate is erroneous.

Learned counsel for the respondent Shri Khet Singh has strongly refuted the submissions, made on behalf of the petitioner, on the ground that RTI

information has not been completely refused, but has only been denied for the time being, until completion of the selection process. Learned counsel

for the respondent has further assured the Court that as soon as the selection process is over, the OMR sheet under the RTI shall be provided.

Learned counsel for the respondent has submitted that the petitioner had appropriate remedy under the RTI Act 2005 and thus, he should not have

directly invoked the writ jurisdiction of this Hon’ble Court.

Learned counsel for the petitioner has, however, submitted that once a precedent law has been laid down by the Hon’ble Apex Court and the

respondents are under a legal obligation to provide with a copy of OMR sheet then the proposition of alternate remedy does not exist and it is only a

matter of re-enforcing the precedent law, which can be done by invoking the jurisdiction under Article 226 of the Constitution of India.

Learned counsel for the respondent has relied upon the judgment passed by Jaipur Bench of this Hon’ble Court in Shanu Goyal Vs. State of

Rajasthan & Ors. (D.B. Civil Writ Petition no.11708/2013) decided on 08.07.2013, the relevant portion reads as under :-

“The Hon'ble Apex Court in Central Board of Secondary Education & Anr.Vs. Aditya Bandopadhyay & Ors. (supra), had observed, in the context

of the Right to Information Act, 2005, that revelation of information thereunder should not be in conflict with other public interests, which include

efficient operation of the Government, optimum use of limited fiscal resources and preservation of confidential and sensitive information.

In Institute of Chartered Accountants of India Vs. Shaunak H.Satya & Ors., (2011) 8 SCC 781, the Hon'ble Apex Court also, with reference to the

said enactment, had held that informations relating to intellectual property, question papers, solutions/model answers and instructions, in regard to any

particular examination cannot be disclosed before the examination is held as it would harm competitive position of innumerable third parties taking the

same. It was clearly underlined as well that the  examining body is not liable to give any citizen any such information relating to any particular

examination before the date thereof.

In view of the emphatic enunciation and the legal proposition as above, we are of the unhesitant opinion that considering the nature of the ongoing

selection process as stipulated by the Rules and the bearing of the results of the written examination on the eventual selection of the candidates, the

request of the petitioner, as made in the instant petition, ought not to be entertained at this stage. This request, we construe, if allowed, would

undermine the confidentiality of the exercise underway, apart from affecting the third party rights. Besides, the very basis of the relief sought for by

the petitioner is speculative i.e. her perception that her performance has not been correctly evaluated for which there is no tangible basis for this Court

to act upon.

After hearing counsel for the parties and perusing the summon bonum of a progressive civilized society. It is clear from the facts that the recruitment

for Teacher Grade II arising out of advertisement dated 30.07.2016 has already culminated into a written examination held on 30.06.2017 for which

the result has already been declared on 23.02.2018 and therefore, the respondents were under a legal obligation to have given the copy of the OMR

sheet / answer sheet, as they have no justification for withholding the information or copy of the OMR sheet at this stage, particularly, when the

written examination are already over and the results have already been announced and the selection process as virtually moved on to the final stage.

This Court also finds that the application moved by the petitioner under the Right to Information Act has been decided by the respondent on

15.03.2018 which is almost a month ahead of the final declaration of the result on 23.02.2018 by the RPSC. This Court considered the objection raised

by the counsel for the respondent, but we do not wish to go into the issue of alternate remedy at this stage because the precedent law has already

settled the issue of providing the OMR sheet and in the larger interest of  transparency and public confidence in the institution like RPSC, the

indulgence in Article 226 of the Constitution of India is warranted.

In light of the aforesaid observations, the writ petition is allowed and the impugned order dated 15.03.2018 (Annexure10) is quashed and set aside

and respondents are directed to provide the copies of the OMR-sheet to the petitioner within a period of 15 days from today. However, after such

OMR sheet / answer sheet are provided, the petitioner shall have liberty to approach the RPSC for any further relief or he may also avail other

consequential legal remedy.