Inspite of clear directions to provide copies of answer scripts, PSC again in denial mode
SECTION 22 of the Right To Information Act (RTI Act 2005) says that, RTI law has an overriding effect. The relevant section reads as
“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act”.
The J&K RTI Act 2009 also had a similar provision under section 19. This provision clearly indicates that RTI law has to be respected by the public authorities in letter and spirit even if their own laws , circulars, rules, regulations, standing orders go against this act.
The Official Secrets Act of 1923 is still applicable and inspite of the enactment of RTI Act , this law is yet to be repealed. Under the provisions of the Official Secrets Act 1923 no official document or record can be shared with the public , but the RTI Act says the public can have access to information of Govt records / files etc. The provision of overriding effect of RTI Act 2005 is basically kept to address these kinds of legal issues. If RTI has an overriding effect on different laws, circulars and internal orders which override it , I fail to understand why J&K Public Service Commission (PSC) continues to deny information, especially providing the certified copies of answer scripts sought by the information seekers under RTI Act 2005.
Inspite of several judgments passed by Central Information Commission (CIC) and State Information Commission’s (SIC) including erstwhile JK State Information Commission (JKSIC), the J&K Public Service Commission (PSC) continues to violate the RTI Act by denying photocopies of answer books to information seekers / aggrieved persons. The PSC raises a point that its official rules disallow providing xerox copies of answer papers. It seems PSC authorities are not well versed with the RTI Act 2005. Pertinently, the Supreme Court of India has also given a historical direction in this regard several years back in the case of CBSE v/s Bandopdhya wherein it has observed that providing information under the RTI Act is a general rule and denying the information on account of exemption or as provided under section 8 is an exception.
G R Sufi’s direction
Former State Chief Information Commissioner G R Sufi while hearing an appeal against JKPSC in 2016 directly issued a penalty show-cause notice to the Public Information Officer (PIO) of the commission. The officer had denied to share photocopies of answer papers to a civil service aspirant. The Information Commission further directed PSC authorities to provide photocopies of answer papers to the information seeker. The JK PSC had earlier denied to provide this information saying its rules don’t allow it to provide copies of answer papers to information seekers. The Information seeker Narinder Singh a resident Chenani Udhampur had filed an application under J&K RTI Act 2009 before J&K Public Service Commission in August 2015 seeking copies of english answer papers of civil services Mains Examination 2013. As the RTI applicant did not receive any response from the PIO (Deputy Secretary) and the Secretar (First Appellate Authority), the information seeker filed a second appeal in the J&K State Information Commission (SIC). The Information Commission finally decided the case wherein PSC was directed to provide certified copies of answer papers and the PIO was served with penalty show cause notice as well.
CIC’s direction 2016
Central Information Commission (CIC) also issued a similar direction in 2016 in the case of Swati Babbar v/s Guru Gobind Singh Indraprastha University (GGSIU) Delhi. RTI applicant namely Swati Babbar an architecture student of GGSIU Delhi had sought copies of answer sheets (external exam) of some subjects in B.Arch course from the aforesaid University. The PIO had denied the information. The First Appellate Authority (FAA) also upheld the PIOs order. The aggrieved filed a second appeal before Central Information Commission (CIC) New Delhi. The then Information Commissioner Yashovardhan Azad while disposing off the case directed for disclosure of the information and issued penalty notice to the PIO of University for withholding information.
The fresh case
Mohammad Ramzan Khan, father of an aggrieved J&K civil service aspirant had filed an application under RTI Act 2005 before the designated Public Information Officers (PIO) of JKPSC . In his reply dated 21.12.2020 the Deputy Secretary of J&K PSC Vinay Samotra who is the designated PIO told information seeker that PSC does not provide evaluated answer scripts of the candidates. He, however, asked the applicant that he could inspect the papers as per record retention schedule. Mr Khan alleges that his son Irfan Khan had qualified J&K Combined Civil Services mains exam and appeared for interview, but could not find his name in the list of qualifying candidates. He told me that Irfan fared well in the anthropology paper, but got less marks and thus wanted to know whether the evaluation has been made correctly or not ? This is his right as in the past also PSC has provided such information on the direction of J&K State Information Commission. How can they deny the same when they have already provided it on several occasions ? This is a complete violation of the orders of the Supreme Court , CIC and JK SIC as well.
Yashovardahn Azad criticizes PSC order
Yashovardhan Azad, former Indian Police Service (IPS) officer who served as Information Commissioner at Central Information Commission (CIC) New Delhi between 2013 to 2018 while commenting on my tweet made critical remarks against J&K Public Service Commission for denying the copies of answer scripts. As mentioned above, Mr Azad had pronounced the famous judgement in the matter of Swati Babbar v/s GGSI University . Mr Yashovardhan Azad without even quoting his own order and instead referring to the Supreme Court order tweeted
“Strange, J&K PSC is willing to show answer sheets to RTI queries but not provide copies. Are they so poor that they don’t have facilities or they comply only with 50 % of the Supreme Court Order to assert their residual autonomy!”
There are almost one dozen other judgments pronounced by former State Chief Information Commissioners G R Sufi , Khurshid Ahmad Ganai and Information Commissioner's Mohammad Ashraf Mir and Prof S K Sharma wherein Jammu & Kashmir Public Service Commission (JKPSC) has been given clear orders to provide copies of answer scripts to information seekers. Then we have orders from the Central Information Commission and above all the Supreme Court’s ruling on this issue. If PSC is adamant to follow its own orders and business rules and sideline the law of the land, I question its credibility and trustworthiness. PSC is an institution which makes selection of civil servants , police officers officers , college teachers , doctors and engineers and if they start behaving like habitual offenders, what can we expect from other Government institutions ? I appeal Hon’ble Chairperson of JKPSC to take a strong notice of this issue otherwise Jammu & Kashmir RTI Movement will bring the matter into the notice of the judiciary as well as Central Information Commission.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial stance of Kashmir Observer
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