Raju Sharma and another vs Haryana State Agriculture Marketing Board and another

K. Kannan, J.—The writ petitioners have sought for issue of writ of mandamus to direct respondents to produce the OMR (optical mark recognition) answer-sheets of the petitioners for the written examination conducted by the second respondent, namely, the Haryana Staff Selection Commission for appointment to the post of Mandi Supervisors in the Haryana State Agriculture Marketing Board, arrayed as the first respondent. The written test was held on 20.04.2008 and the petitioners were admittedly participants in the said test. The result was published on 31.05.2008 and it is a matter of record that among the selected candidates in the written test who were short listed for interview, the petitioners did not figure. Even before the result was published, the second petitioner had sought for information under RTI Act, the details of questions asked in the exams held for the previous year as well as the current year since the petitioners claimed that several questions were the same for both the years. After the result was published on 31.05.2008, the said second petitioner had sought for the marks obtained by him and had submitted a self-addressed envelope with due stamps on 12.06.2008 with appropriate costs. The second petitioner had also pointed out to the fact that some of the questions had been wrongly set, but before there was any response, both the petitioners had filed a writ petition on 08.07.2008 seeking for the reliefs outlined above.

The learned counsel for the petitioners points out that there had been a communication received from Advocate General''s office to the second respondent apprising them about the institution of the writ petition and seeking for the records to be produced in Court. When the records did come, it was only with reference to the marks obtained by various candidates and the Government took a stand that the original answer-sheets had been destroyed on 25.10.2008. In fact, the prayer in the writ petition for production of the OMR answer-sheets has become incapable of compliance by an admitted situation that the answer-sheets of the petitioners as well as all other candidates have been destroyed.

The answer-sheets themselves have no value except that they give out results of candidates that give passage for appointment to public posts. The issue could be, therefore, whether the non-production, in any way materially affected the petitioners cause. The petitioners'' grievance had been that they had performed very well in the exams and they were sure to have been qualified for attending the interview and would have been also selected. Even apart from the absence of answer-sheets, if there was no information at all about the marks that they have secured, the non-production of the answer-sheets would have been material. In this case, there has been an information of the marks secured not merely of the petitioners but of the marks secured by all the candidates through their reference to the original computer print outs of the appraisals of OMR sheets. It is a matter of record and which is admitted that the cut off marks for BCA candidates were 198 and for SC candidates, they were 190, for being called for interview. The information supplied is that the first petitioner had 182 marks and the second petitioner had 146 marks which would mean that both the candidates had not qualified for being called for the interview. If it was merely a statement of marks that has been produced, there could be a cause for genuine complaint. On the other hand, as observed already, the computer printouts of the dedicated scanner device containing the details of the question with respective choices of answers against each question (from among choices (a) to (d) for each candidate have been produced before this Court. It is a matter of technical information that OMR answer-sheets give themselves to a process of image capturing from the answer-sheets through a technique called contrasting reflectivity at pre-determined positions on a page, which is later utilized to detect the marked areas by the fact that they reflect less light than the blank areas of the paper.

If the marks sheets which are maintained and produced before Court represents records maintained in the usual course, I have no reason to suspect that they could have been tampered with. The fact that the respondents have destroyed all the answer-sheets would have spelt gross prejudice to the petitioners if there had been a sure basis that the answers were not properly appraised. In an objective type of questioning where the answers are on a multiple choice basis, they leave no room for any subjectivity of the examiner. The entire system of answer appraisals have been reduced to a mere mechanical process of extracting the answers from the multiple choice field and awarding of marks dependent on the choice adopted for each question by a candidate. This manner of reckoning cannot be easily manipulated by a human intervention. The OMR technique is believed to assure 99.995% accuracy, as per technical journals. I will not, therefore, find that the petitioners could have any justifiable grievance that they have been wrongly apprised or they ought to have been taken as selected.

The production of answer-sheets in Court themselves cannot be a matter of course by the only fact that the candidate believes that he had performed well and he was expecting very high marks. In quite a situation, there might be a mismatch between what a candidate apprises himself to be than how a third party appraisal turns out to be. A candidate can flatter himself by believing that he was extraordinarily brilliant and that is why, we have a system of examinations by institutions like State Recruitment Boards or the Staff Selection Commissions. Therefore, the Courts have been weary of interventions at every level at the time of selection and the preponderance of decisions point to the fact that it shall be never a matter of course that a person secures answer-sheets in Courts. The Court shall not summon the answer-sheets at the mere asking and there ought to be a very strong proof about any manipulation before such a power is exercised. The petitioners'' prayer itself ought not to mean that it should be taken to have been allowed at his asking so as to construe a destruction of records as immediately giving a rightful cause of action for the petitioners to secure the ultimate result that they should be treated as passed or a fresh appraisal should be done. As I have extracted above the production of answer-sheets themselves cannot be treated as an end. It is merely means to secure an end namely of what the result could have been. If the result was seen to be not in favour of the petitioners by the OMR mark-sheets that have been produced before the Court, that would settle the issue that the petitioners were not entitled to secure the answer-sheets.

The learned counsel appearing on behalf of the petitioners refers to a judgment of the Hon''ble Supreme Court in Central Board of Secondary Education and Another Vs. Aditya Bandopadhyay and Others, , that was decided in the context of interpreting the provisions of the Right to Information Act. The question posed was whether the answer book of CBSE examination came within the sweep of term "information" as contained under the Right to Information Act. The Hon''ble Supreme Court held that the right of an examine to inspect answer books and to seek certified copies was an information within the Act and since the examinee was asking for such information, the candidate would have a right to inspect the answer-sheets or take a certified copy thereof. The Court at the same time also held that a Board does not hold the evaluated answer-sheets in any fiduciary relationship with student and consequently, the information sought by the examinee by way of examination of his answer-sheets would not fall under any of the exempted category of protected information. The Court held that the answer-sheets are required to be maintained for a period of 3 months and thereafter, they are liable to be destroyed depending on the relevant rules governing the same. In this case, the rules provide for retention of the mark-sheets for a period of 3 months. According to the learned counsel for the petitioners, the final results of selection after the interview made on 23.08.2008 and if at all, the document could have been destroyed only on the completion of 3 months, namely, after 23.11.2008. The starting point must be only from the date of final selection since even on the showing of the respondents when the petitioners sought for the questions and answers on 01.05.2008, it was replied by the respondents that since the final selection had not been made, the question paper could not be even supplied at the stage (vide Annexure P-4). While I would answer the petitioners'' query about when the answer-sheets could have been destroyed to say that it could not have been before 23.11.2008, the destruction of the records before the date at least did not cause any prejudice to the petitioners in the manner I have dealt with the issue relating to the assessment of marks. However at the same time, I must observe that the conduct of the respondents in destroying the answer-sheets within 3 months puts the public institution like the Staff Selection Board in a very poor light. More so, that the answer-sheets were destroyed when they had definite information from the AG''s office that the original records were required to be produced in Court. It is a lame excuse to say that they had not a copy of the writ petition and therefore, they had no information that they would be required to keep the answer-sheets.

The expression, cliched as it may sound, ''justice shall not only be done but must be seen to be done'' is anchored to a procedural due process. A 99.995% accuracy in OMR appraisal still leaves a margin of 005% inaccuracy. The candidate is bound to have 100% assurance that he had a fair deal. The production of the original answer-sheet alone would have done it, if there were a doubt in the Court to require its production. The 2nd respondent ought to know that it shall obey its own rules for safe custody of records, and respond with alacrity when a demand comes through RTI Act. The 2nd respondent failed on both counts. The transparency in public office that is sought to be secured through the Right to Information Act will take a serious beating if the Public Offices behave like the way they have done by destroying the public records that would make meaningless an exercise which the Act assiduously seeks to protect.

Even while dismissing the writ petition for the relief, I would award a cost of Rs. 10,000/- in favour of each of the petitioners against the 2nd respondent. The writ petition is disposed off as above.