HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On 02.05.2007
Delivered On 25.05.2007
Civil Misc. Writ Petition No. 18775 of 2007
Paras Nath Pal and others Vs. State of U.P. and others
&
Civil Misc. Writ Petition No. 19089 of 2007
Ram Ashrey Yadav Vs. State of U.P. and others
&
Civil Misc. Writ Petition No. 20331 of 2007
Sarvesh Kumar and another Vs. State of U.P. and others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
Counter and rejoinder affidavits have already been exchanged between the parties and therefore as requested and agreed by learned counsel of the parties all three writ petitions which involves common question of facts and law, have been heard and are being decided finally under the Rules of the Court at the admission stage.
For the purpose of narration of facts we have taken the case of Paras Nath Pal and others, Writ Petition No. 18775 of 2007 as the leading case.
Petitioners are candidates in Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004 and have approached this Court under Article 226 of the Constitution challenging result of main written examination of the said selection declared by U.P. Public Service Commission (hereinafter referred to as "Commission") on 24.3.2007 by applying scaling method known as "Linear Standard Score Method". They have sought a writ of certiorari for quashing the said result and have further prayed for a writ of mandamus commanding the Commission to prepare the result of written examination afresh by excluding the aforesaid scaling method and instead applying "moderation system" as discussed by the Apex Court in para 23 of the judgment in Sanjay Singh and another Vs. U.P. Public Service Commission, Allahabad and another, JT 2007 (2) SC 534.
The facts in brief as stated in the three writ petitions are that the Commission vide Advertisement No. A-2/E-1/2004 published in the employment news dated 15-21.5.2004 for "Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004". The number of vacancies reserved for Scheduled Castes, Scheduled Tribes and Other Backward Class in various services i.e. 22 in all as notified are as under:-
"Sr.No Name of the Post & Scale Vacancies
SC ST OBC
1. Dy. Collector8000-13500 - 03 16
2. Asstt. Regional Transport Officer 8000-13500 04 01 01
3. Block Development Officer 8000-13500 - 08 -
4. Addl. Distt. Dev. Officers8000-13500 - - 05
5. Asstt. Commissioner Trade Tax8000-13500 05 04 17
6. Executive Officer Panchayati Raj8000-13500 04 - -
7. Manager (Marketing & Economic Survey) 8000-13500 01 - 04
8. Asstt. Labour Commissioner 8000-13500 01 - -
9. Superintendent Jails8000-13500 01 - -
10. Treasury Officer/Accounts Officer8000-13500 08 02 04
11. Assistant Registrar Co-operative Societies 8000-13500 01 01 02
12. Distt. Commandant Home Guard8000-13500 01 - -
13. Distt. Cane Officer 8000-13500 01 - 02
14. Distt. Administrative Officer6500-10500 02 - -
15. Distt. Panchayat Raj Officer 6500-10500 03 - 04
16. Distt. Backward ClassWelfare Officer6500-10500 - - 02
17. Distt. Savings Officer 6500-10500 02 - -
18. Distt. Social Welfare Officer 6500-10500 01 - 04
19. Distt. Supply Officer Grade II6500-10500 - - 01
20. Sub Registrar6500-10500 05 02 09
21. Trade Tax Officer Grade II5500-9000 18 06 35
22. Area Rationing Officer5500-9000 - - 01"
All these services are governed by different rules governing recruitment and conditions of service under proviso to Article 309 of the Constitution of India and we shall consider in detail some of the relevant rules at a later stage.
Pursuant to the aforesaid advertisement the petitioners applied. According to the scheme of selection as provided in the aforesaid advertisement the competitive examination comprises three successive stages as under:-
1. Preliminary Examination (Objective Type)
2. Main Examination (Written Examination)
3. Viva Voce (Personality Text)
The details of preliminary examination as notified in the advertisement is under:-
"(1) Subjects for the Preliminary examination:- The preliminary examination will consist of the following two objective type papers of which answer shall be on OMR sheets. The syllabus is mentioned in appendix-IV of this advertisement. The prescribed time for each paper is two hours and prescribed maximum marks for compulsory paper is 150 and optional paper is 300.
PAPERS
Paper-1 (Optional) The candidates must select any one of the following subjects as optional subject:
Subject Code Subject Code Subject Code
Agriculture 01 Economics 09 Animal Husbandry & Veterinary Science 17
Zoology 02 Political Science 10 Statistics 18
Commerce 03 Sociology 11 Public Administration 19
Chemistry 04 Philosophy 12 Electrical Engineering 20
Physics 05 Geology 13 Mechanical Engineering 21
Mathematics 06 Psychology 14 Civil Engineering 22
Indian History 07 Botany 15
Geography 08 Law 16
Paper-II (Compulsory): General Studies."
Similarly the details of main examination were also provided in the advertisement as under:-
"Subjects for the Main (Written) Examination: the written examination will consist of the following compulsory and optional subjects. The syllabus of where is mentioned in Appendix-V of this advertisement. The candidates have to select any two subjects from the list of optional subjects for main examination. Each optional subject will consist of two papers.
(A) COMPULSORY SUBJECTS
1. General Hindi 150 marks
2. Essay 150 marks
3. General studies (I-Paper) 200 marks
4. General studies (II-Paper) 200 marks
General Studies Paper-I & Paper-II: Shall be objective type containing 150 questions and for solving the questions two hours time is allowed. For other compulsory and optional papers three hours time is allowed. Two hundred maximum marks has been allotted for each optional question paper.
None: A candidate shall be required to obtain minimum marks in the compulsory paper of General Hindi, as may be determined by the Government or the Commission, as the case may be. There shall be two sections in all the question papers of all Optional subjects and each section will include Four questions. Candidates are required to answer only Five questions while they must select minimum Two questions from each section.
(B) OPTIONAL SUBJECTS
Subject Code Subject Code Subject Code
Agriculture 01 Law 16 Civil Engineering 25
Zoology 02 Animal Husbandry & Veterinary Science 17 Mechanical Engineering 26
Chemistry 04 Statistics 18 Electrical Engineering 27
Physics 05 Defence Studies 19 English Lit. 29
Mathematics 06 Management 20 Urdu Lit. 30
Geography 08 Political Science & International Relations 21 Arabic Lit. 31
Economics 09 History 22 Hindi Lit. 32
Sociology 11 Social Work 23 Parsian Lit. 33
Philosophy 12 Anthropology 24 Sanskrit Lit. 34
Geology 13 Commerce & Accountancy 35
Psychology 14 Public Administration 36
Botany 15 Agriculture Engineering 37
Note: A candidate will not be allowed to offer more than one subject from the-
Group ''A' Group ''B' Group ''C'
1. Social Work 1. Mathematics 1. Agriculture
2. Anthropology 2. Statistics 2. Animal Husbandry and Veterinary Science
3. Sociology
Group ''D' Group ''E' Group ''F'
1. Civil Engineering 1. English Literature 1. Political Science & International Relations
2. Mechanical Engineering 2. Hindi Literature 2. Public Administration
3. Electrical Engineering 3. Urdu Literature Group ''G'
4. Agricultural Engineering 4. Arabic Literature 1. Management
5. Persian Literature 2. Public Administration
6. Sanskrit Literature"
The Commission conducted preliminary examination on 27.2.2005 wherein all the petitioners appeared. The result was declared in September, 2005. All the petitioners were declared successful whereupon they were required to appear in the main examination held between 19.5.2006 to 3.6.2006. The Commission declared the result of written examination on 24.3.2007 wherein 672 candidates have been declared successful and have been required to appear in viva voce. None of the petitioners has been declared successful in the written examination, aggrieved whereagainst, they have filed the present writ petitions alleging that though they have performed well in the main written examination but the Commission has not finalized the result of the written examination on the basis of the actual marks obtained by the candidates in the main written examination. On the contrary it has prepared the result of the main written examination by applying scaling method known as "Linear Standard Score Method", in pursuance whereto some of the candidates who have secured, in reality, much lesser marks have been declared successful while others who have secured higher marks have been declared unsuccessful. It is contended that adoption of "Linear Standard Score Method" in the aforesaid examination is illegal and contrary to the law laid down by the Apex Court in Sanjay Singh (Supra).
On behalf of respondents no. 2 and 3 counter affidavit has been filed stating that after receiving requisitions from various departments of the State Government, the Commission issued Advertisement No. A-2/E-1/2004 and the last date for receiving applications was 11.6.2004. The preliminary examination was held on 27.2.2005 and its result was declared on 31.8.2005. 59230 candidates appeared in preliminary examination, out of which 3690 were declared successful who could have appeared in the main written examination. The main written examination was held between 19.5.2006 to 3.6.2006 wherein only 2831 candidates appeared. The result was declared on 24.3.2007 and the Commission found 608 candidates qualified to appear for interview and letters inviting them for interview have also been issued to them. It is said that the examinations conducted by the Commission are governed by the "U.P. Public Service Commission (Procedure and Conduct of Business) Rules, 1976" (hereinafter referred to as the "Business Rules, 1976"). It is also said that the answer scripts of main written examination were evaluated in the month of November, 2006 when the Z-Scaling System as per Commission's decision dated 7.9.1996 and 30.3.1999 was applied. The scaling system in pre examination was applied at subject level, and in the main examination at examiner level, as per the recommendations of the experts. At that time the scaling system was already upheld by the Apex Court in U.P. Public Service Commission Vs. Subhash Chandra Dixit and others, JT 2003 (8) SC 531 and therefore there was no illegality in following the same. Subsequently the Apex Court decided Sanjay Singh (Supra) on 9.1.2007 but the said judgment is confined to the selection of the Civil Judge (Junior Division) which is governed by Judicial Service Rules, 2001 (hereinafter referred to as "JRS, 2001"). The Apex Court has permitted the Commission to follow scaling system in other matters till another system is adopted. Hence the judgment of Sanjay Singh (Supra) has neither any application to the selection in question nor otherwise renders it illegal and contrary to law. In particular reliance has been placed by the respondents no. 2 and 3 to para 24 of the judgment in Sanjay Singh (Supra). It is also said that the judgment in Sanjay Singh (Supra) is not retrospective. Since the answer sheets were evaluated in November, 2006, the judgment in Sanjay Singh (Supra) pronounced on 9.1.2007 would not vitiate the aforesaid selection. It is said that the petitioners have secured lesser marks than the last selected candidates who have been called for interview and therefore they have no cause of action to maintain these writ petitions.
We have heard Sri M.D. Singh ''Shekhar', Sri Arvind Srivastava and Sri Pankaj Kumar Srivastava, learned counsels for the petitioners, learned Standing Counsel appearing for the respondent no. 1 and Sri P.S. Baghel, learned counsel appearing for the Commission.
Learned Standing Counsel appearing on behalf of the State of U.P. has not filed any counter affidavit separately. Since the matter pertains to selection conducted by the Commission, he has adopted and followed the stand taken by the Commission in pleadings and oral arguments.
Learned counsels for the petitioners have opposed adoption of "Linear Standard Score Method" in preparation of result of the main written examination mainly on the following grounds:-
1. Like JRS, 2001 which came up for consideration before the Apex Court in Sanjay Singh (Supra), the recruitment rules of various services for which the Commission was required to make recruitment in the case in hand also contain pari materia provision like Rule 20(3) JRS, 2001. The selection thus is required to be conducted by the Commission on the basis of the final list of selected candidates in order of their proficiency as disclosed by the marks finally awarded to the candidates in the written examination and in the interview. Therefore, hypothetical and assumed marks cannot be the basis for selection. The result of the written examination having been prepared on the basis of assumed marks is vitiated in law and contrary to the dictum of Apex Court in Sanjay Singh (Supra).
2. The marks calculated by applying "Linear Standard Score Method" would result in scaled scores or scaled marks and cannot be considered to be marks awarded to the candidates in the written examination and therefore, scaling is violative of the relevant rules of recruitment of various services up for consideration before the Commission. The Apex Court held where the candidates in a competitive examination have the option of selecting one or few amongst a variety of heterogeneous subjects and number of students taking different options also varying, in order to prepare a common merit list of such candidates the experts have adopted the method known as scaling which places score from different tests or test in diferent subjects on to a common scale. There are different methods of statistical scoring namely, Standard Score Method, Linear Standard Score Method, normalize equal percentile method etc. The scaling method however, adopted by the Commission to reduce examiners variability has been held to be illegal and arbitrary by the Apex Court in Sanjay Singh (Supra). It may adopt the same to find a common base across different subjects. In the main written examination the scaling system has been adopted by the Commission, as admitted in the counter affidavit, to reduce examiners variability, the same is in the teeth of the law laid down by the Apex Court in Sanjay Singh (Supra).
3. The precaution and steps which are normally required to be adopted before applying scaling in regard to marks awarded by the examiners in the same subject has not been observed and in a mechanical way the scaling method has been followed in the same manner as it has been followed in the past ignoring strong deprecation of the said procedure by the Apex Court in Sanjay Singh (Supra). The judgment in Sanjay Singh (Supra) was pronounced on 9.1.2007 and the result of the main written examination has been declared on 24.3.2007 yet the directions issued by the Apex Court have been ignored and thereby the career of more meritorious and competent candidates is being ruined by application of a method which has already been deprecated by the Apex Court and held to be illegal.
Sri Baghel, on the contrary, has opposed the writ petitions and contended that the Apex Court has not condemned scaling method in its entirety. The judgment permits continuance of scaling system to be followed till any other suitable method is found. Further the judgment is not retrospective but is applicable to subsequent examinations. The judgment is confined to Judicial Service and not to others. It is contended that the procedure adopted by the Commission is perfectly correct and within the four corners of the observations made by the Apex Court in Sanjay Singh (Supra).
The short question up for consideration, therefore, in the light of the rival submissions as noted above is whether the adoption of scaling method i.e. "Linear Standard Score Method" by the respondents in the present selection i.e. result of main written examination, is valid and correct or not.
The Commission has admitted in its counter affidavit that in the compulsory papers the subject of General Studies, Paper 1 and 2 are of objective types, the assessment is made by computer and therefore scaling system is not applied thereto since there is no examiner variability. The papers of General Hindi and Essay, being conventional type are assessed by more than one examiner and therefore scaling system is applied on examiner level. In para 16 of the writ petition it has been stated that in the four optional papers in different subjects also the Commission has applied scaling method i.e. "Linear Standard Score Method" and in reply thereto in para 18 of the counter affidavit, the Commission has referred to para 24 of the judgment in Sanjay Singh (Supra) but has not said that the scaling system has not been adopted in optional subjects. During the course of argument, learned counsel appearing for the Commission stated at the bar that the scaling method has been adopted in all six subjects, compulsory and optional, other than two compulsory subject where the assessment is through computer, and therefore it is an admitted position that the result of main written examination has been declared by the Commission by applying scaling method in respect to two compulsory and four optional subjects. The manner, method and procedure of the system has not stated in detail in the counter affidavit but during the course of argument it is stated that in the manner it has been done in the past, the same has been followed in the present examination also. Reference is made to para 22 of the counter affidavit stating that since 1996 it has continuously been followed in the same manner. We, therefore, are justified in treating that the commission has applied scaling method in all respect, in the same manner as it was up for consideration before the Apex Court in Sanjay Singh (Supra). It would, therefore, be appropriate to consider as to what has been held by the Apex Court in respect to the scaling method in the said judgment since the issue has already been dealt with by the Apex Court. In para 17 of the judgment, while upholding the right of the Commission to regulate the manner in which it will conduct examination and value the answer scripts, the Apex Court has clearly hold that its subject to the recruitment rules of the concerned service. It has observed as under:-
"Therefore, it is for the Commission to regulate the manner in which it will conduct the examination and value the answer scripts, subject, however, to the provisions of the Judicial Service Rules. If the Commission has made Rules to regulate the procedure and Conduct of the examination, they will naturally apply to any examination conducted by it for recruitment to any service, including the judicial service. But where the Judicial Service Rules make a specific provision in regard to any aspect of examination, such provision will prevail, and the provision of PSC Procedure Rules, to the extent it is inconsistent with the Judicial Service Rules, will be inapplicable. Further, if both the Rules have made provision in regard to a particular matter, the PSC Procedure Rules will yield to the Judicial Service Rules."
Therefore, the procedure rules of the Commission will have to yield to the concerned Recruitment Rules of the service, if any, in the case of inconsistency. We tried to find out whether in the services for which the recruitment has been made by the Commission in the case in hand, the recruitment rules contain a provision similar to that of Rule 20 (3) JSR, 2001. Sri Baghel seriously contended that similar provision do not exist though did not place the relevant rules before the Court. The learned counsels for the petitioners on the contrary said that pari materia provisions exit and some of the rules were cited at the Bar. Before proceeding further it would be appropriate to examine some of recruitment rules of the various services for which recruitment is being made by the Commission in the examination in question.
The recruitment to the post of Deputy Collector is governed by "U.P. Civil Service (Executive Branch) Rules, 1982" and Rule 15 which provides for procedure for direct recruitment, sub-Rule 3 and 4 thereof reads as under:-
"(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Caste, Scheduled Tribes and others under rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtained higher marks in the written examination shall be placed higher in list. The Commission shall forward the list to the appointing authority. The number of names in the list shall be equal to the number of vacancies but if for any reason some persons on the list are not appointed, the appointing authority may, within one year from the date of receiving such list, require the Commission for a supplementary list sufficient to fill in the remaining vacancies." (emphasis added)
Recruitment rules in respect to other services in question are also pari materia and some of the relevant rules of services/posts in question are as follows:-
"Sr. No. Service/Post Title of the Rule Relevant Rules
1. Assistant Register, Co-operative Societies U.P. Cooperative Services Rules, 1979 Rule 15 (3) & (4)
2. Block Development Officer The State Development Service (Gazatted) Rules, 1972 Rule 16(4)
3. Asstt. Commissioner Trade Tax U.P. Sales Tax Service Rules, 1983 Rule 15 (3) & (4)
4. Distt. Commandant Home Guard U.P. Homeguard Sewa Niyamawali, 1982 Rule 15 (3) & (4)
5. Distt. Cane Officer U.P. Cane (Gazetted) Service Rules, 1979 Rule 15 (3) & (4)
6. Distt. Panchayat Raj Officer U.P. District Panchayat Raj Officers Service Rules, 1979 Rule 15 (3) & (4)
7. Trade Tax Officer Grade-II U.P. Sales Tax Service Rules, 1983 Rule 15 (3) & (4)
8. Treasury Officer/ Accounts Officer U.P. Finance and Accounts Service Rules, 1980 Rule 15 (3) & (4)
9. Social Welfare Officer U.P. Harijan and Social Welfare Gazetted Officers Service Rules, 1991" Rule 14 (4) & (5)
Therefore, in general, in the recruitment rules of the various services for which the Commission is making recruitment herein also, it is clearly provided that the Commission shall prepare the list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. The provision in the recruitment rules of the various services which are in question, in our view, are pari materia with Rule 20(3) of JRS, 2001 which was up for consideration before the Apex Court and on that account, therefore, no distinction can be made out for application of the judgment in Sanjay Singh (Supra). The distinction sought to be made out by the Commission on the ground that Sanjay Singh's judgment is confined to the case of Judicial Service is unjust, unfounded and incorrect. We have thus no hesitation to reject it.
In para 19 of the judgment the Apex Court with reference to Rule 20(3) of JRS, 2001 clearly held that since the provision similar to proviso to Rule 51 of the Public Service Commission Procedure Rules is not contained therein, it is not possible to read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note (i) of Appendix II of JRS, 2001. It also held that Rule 20(3) and Note (i) of Appendix II has to be read as they are without the addition of the proviso to Rule 51 of PSC Procedure Rules and after observing so, the Apex Court held as under:-
"If so, what can be taken into account for preparing final list of selected candidates, are 'marks finally awarded to a candidate' in the written examination and the interview. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be 'the final marks awarded to the candidate'. Where the Commission is of the view that there is 'examiner variability' in the marks (due to strict or liberal assessment of answer scripts) or improper assessment on account of erratic or careless marking by an examiner, they can be corrected appropriately by moderation. The moderation is either by adding (in the case of strict examiners) or deducting (in the case of liberal examiners) a particular number of marks which has been decided with reference to principles of moderation applied. If there is erratic or careless marking, then moderation is by fresh valuation by another examiner. Therefore, the marks assigned by the examiner as moderated will be the marks finally awarded to the candidates or marks obtained by the candidates. Moderation, it has to be held, is inherent in the evaluation of answer scripts in any large scale examination, where there are more than one examiner." (emphasis added)
In para 20 of the judgment the Court held that the "marks awarded" would include the "marks awarded on alternation by moderation". Thereafter it proceeded to consider whether the scaled scores or scaled marks awarded to the candidate in the written examinations would answer the said requirement and decided the issue in negative as it apparent from para 21 of the judgment which reads as under:-
"But the question is whether the raw marks which are converted into scaled scores on an artificial scale which assumed variables (assumed mean marks and assumed standard deviation) can be considered as 'marks finally awarded' or 'marks obtained'. Scaled scores are not marks awarded to a candidate in a written examination, but a figure arrived at for the purpose of being placed on a common scale. It can vary with reference to two arbitrarily fixed variables, namely 'Assumed Mean' and 'Assumed Standard Mean'. We have dealt with this aspect in greater detail while dealing with question (iii). For the reasons given while considering question (iii), we hold that 'scaled scores' or 'scaled marks' cannot be considered to be 'marks awarded to a candidate in the written examination'. Therefore, scaling violates Rule 20(3) and Note (i) of Appendix-II of Judicial Service Rules." (emphasis added)
The Apex Court formulated question no. 3 as under:-
"(iii) Whether the 'scaling system' adopted by the Commission is arbitrary and irrational, and whether the decision in S. C. Dixit (supra) approving the 'scaling system' requires reconsideration ?"
The answer to the said question has been dealt with in para 23 to 40 of the judgment and in para 35 it has declared the said scaling method adopted by the Commission, arbitrary and irrational.
The Apex Court considered as to what "scaling" meant and in para 25 observed as under:-
"Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination."
In para 27 it observed that some examining body like Commission instead of following moderation has adopted scaling not only where there is need to find common base across different subjects but also as an alternative to moderation, to reduce examiner variability i.e. where different examiners evaluate answer scripts relating to the same subjects. Thereafter, in para 32 the Court held as under:-
"As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations."(emphasis added)
After deprecating and declaring scaling system arbitrary, the Court found the necessity for the Commission to identify a suitable system of evaluation by appointing, if necessary, another committee of experts and till such new system is adopted, permitted the Commission to follow moderation system setout in para 23 of the judgment with appropriate modifications. In para 38 of the judgment, dealing with the contention of the Commission that scaling has been accepted as a standard method of evaluation in the some of the earlier judgments, the Court held as under:-
"All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of scaling, where a comparative assessment is to be made of candidates having option to take different subjects. The question is whether scaling, in particular, linear standard scaling system as adopted by the Commission, is a suitable process to eliminate 'examiner variability' when different examiners assess the answer scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of 'scaling' used by the Commission."
Thus it is evident that in order to form a common base where the candidates have taken examinations in different optional subjects, the Commission was allowed to adopt the said system of scaling to bring the candidates appearing in different subjects on the common platform but in the same subject, for the purpose of examiner's variability, the adoption of scaling system has been deprecated and held arbitrary and illegal.
The contention of the learned counsel for the Commission that the judgment is applicable prospectively and not to the selections already held in our view is totally misplaced and appears to be a conscious denial of observance of a law laid down by the highest Court of the land. While answering question no. 4, the Court held that the selection of judicial officers had already completed, the selected candidates had already appointed and were working as judicial officers. In these circumstances it held that the decision in Sanjay Singh (Supra) will be prospective in its application and will not affect the selections and appointments already made in pursuance to 2003 examination. In the case in hand, it cannot be said that even the selection was finalized. The Commission has admitted that only evaluation of the answer scripts had completed by November, 2006. That itself does not mean that the selection was finalized or completed in November, 2006. Despite of our repeated query the Commission did not inform as to when and at what stage the scaling method was applied for the purpose of preparing the result in question but from the method they used it is evident that only after the marks awarded by the examiners are available to the Commission, thereafter only they would have applied the scaling method for the purpose of finding out the marks awarded to the candidates and on that basis the merit list has been prepared. Since the assessment of the answer sheets by various examiners was completed as admitted by the Commission by end of November, 2006, rest of the work i.e. application of scaling system is obviously subsequent thereto. Since the result has been declared after more than two and half months from the date the judgment in Sanjay Singh (Supra) was pronounced by the Apex Court, the Commission had enough time to act and proceed in the manner as directed by the Court in the said judgment. In our view it cannot be said that the said judgment has no application to the selection in question and the contention of the Commission otherwise is rejected.
In the result, the writ petitions succeed and are allowed. The result of the main written examination of Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004 declared by the Commission on 24.3.2007 is hereby quashed and the Commission is directed to prepare a fresh result of the said examination in the light of the observations made above and the directions issued by the Apex Court in Sanjay Singh (Supra).
In the facts and circumstances of the case, there shall be no order as to costs.
Dated/-25.05.2007
Avy
Reserved On 02.05.2007
Delivered On 25.05.2007
Civil Misc. Writ Petition No. 18775 of 2007
Paras Nath Pal and others Vs. State of U.P. and others
&
Civil Misc. Writ Petition No. 19089 of 2007
Ram Ashrey Yadav Vs. State of U.P. and others
&
Civil Misc. Writ Petition No. 20331 of 2007
Sarvesh Kumar and another Vs. State of U.P. and others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
Counter and rejoinder affidavits have already been exchanged between the parties and therefore as requested and agreed by learned counsel of the parties all three writ petitions which involves common question of facts and law, have been heard and are being decided finally under the Rules of the Court at the admission stage.
For the purpose of narration of facts we have taken the case of Paras Nath Pal and others, Writ Petition No. 18775 of 2007 as the leading case.
Petitioners are candidates in Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004 and have approached this Court under Article 226 of the Constitution challenging result of main written examination of the said selection declared by U.P. Public Service Commission (hereinafter referred to as "Commission") on 24.3.2007 by applying scaling method known as "Linear Standard Score Method". They have sought a writ of certiorari for quashing the said result and have further prayed for a writ of mandamus commanding the Commission to prepare the result of written examination afresh by excluding the aforesaid scaling method and instead applying "moderation system" as discussed by the Apex Court in para 23 of the judgment in Sanjay Singh and another Vs. U.P. Public Service Commission, Allahabad and another, JT 2007 (2) SC 534.
The facts in brief as stated in the three writ petitions are that the Commission vide Advertisement No. A-2/E-1/2004 published in the employment news dated 15-21.5.2004 for "Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004". The number of vacancies reserved for Scheduled Castes, Scheduled Tribes and Other Backward Class in various services i.e. 22 in all as notified are as under:-
"Sr.No Name of the Post & Scale Vacancies
SC ST OBC
1. Dy. Collector8000-13500 - 03 16
2. Asstt. Regional Transport Officer 8000-13500 04 01 01
3. Block Development Officer 8000-13500 - 08 -
4. Addl. Distt. Dev. Officers8000-13500 - - 05
5. Asstt. Commissioner Trade Tax8000-13500 05 04 17
6. Executive Officer Panchayati Raj8000-13500 04 - -
7. Manager (Marketing & Economic Survey) 8000-13500 01 - 04
8. Asstt. Labour Commissioner 8000-13500 01 - -
9. Superintendent Jails8000-13500 01 - -
10. Treasury Officer/Accounts Officer8000-13500 08 02 04
11. Assistant Registrar Co-operative Societies 8000-13500 01 01 02
12. Distt. Commandant Home Guard8000-13500 01 - -
13. Distt. Cane Officer 8000-13500 01 - 02
14. Distt. Administrative Officer6500-10500 02 - -
15. Distt. Panchayat Raj Officer 6500-10500 03 - 04
16. Distt. Backward ClassWelfare Officer6500-10500 - - 02
17. Distt. Savings Officer 6500-10500 02 - -
18. Distt. Social Welfare Officer 6500-10500 01 - 04
19. Distt. Supply Officer Grade II6500-10500 - - 01
20. Sub Registrar6500-10500 05 02 09
21. Trade Tax Officer Grade II5500-9000 18 06 35
22. Area Rationing Officer5500-9000 - - 01"
All these services are governed by different rules governing recruitment and conditions of service under proviso to Article 309 of the Constitution of India and we shall consider in detail some of the relevant rules at a later stage.
Pursuant to the aforesaid advertisement the petitioners applied. According to the scheme of selection as provided in the aforesaid advertisement the competitive examination comprises three successive stages as under:-
1. Preliminary Examination (Objective Type)
2. Main Examination (Written Examination)
3. Viva Voce (Personality Text)
The details of preliminary examination as notified in the advertisement is under:-
"(1) Subjects for the Preliminary examination:- The preliminary examination will consist of the following two objective type papers of which answer shall be on OMR sheets. The syllabus is mentioned in appendix-IV of this advertisement. The prescribed time for each paper is two hours and prescribed maximum marks for compulsory paper is 150 and optional paper is 300.
PAPERS
Paper-1 (Optional) The candidates must select any one of the following subjects as optional subject:
Subject Code Subject Code Subject Code
Agriculture 01 Economics 09 Animal Husbandry & Veterinary Science 17
Zoology 02 Political Science 10 Statistics 18
Commerce 03 Sociology 11 Public Administration 19
Chemistry 04 Philosophy 12 Electrical Engineering 20
Physics 05 Geology 13 Mechanical Engineering 21
Mathematics 06 Psychology 14 Civil Engineering 22
Indian History 07 Botany 15
Geography 08 Law 16
Paper-II (Compulsory): General Studies."
Similarly the details of main examination were also provided in the advertisement as under:-
"Subjects for the Main (Written) Examination: the written examination will consist of the following compulsory and optional subjects. The syllabus of where is mentioned in Appendix-V of this advertisement. The candidates have to select any two subjects from the list of optional subjects for main examination. Each optional subject will consist of two papers.
(A) COMPULSORY SUBJECTS
1. General Hindi 150 marks
2. Essay 150 marks
3. General studies (I-Paper) 200 marks
4. General studies (II-Paper) 200 marks
General Studies Paper-I & Paper-II: Shall be objective type containing 150 questions and for solving the questions two hours time is allowed. For other compulsory and optional papers three hours time is allowed. Two hundred maximum marks has been allotted for each optional question paper.
None: A candidate shall be required to obtain minimum marks in the compulsory paper of General Hindi, as may be determined by the Government or the Commission, as the case may be. There shall be two sections in all the question papers of all Optional subjects and each section will include Four questions. Candidates are required to answer only Five questions while they must select minimum Two questions from each section.
(B) OPTIONAL SUBJECTS
Subject Code Subject Code Subject Code
Agriculture 01 Law 16 Civil Engineering 25
Zoology 02 Animal Husbandry & Veterinary Science 17 Mechanical Engineering 26
Chemistry 04 Statistics 18 Electrical Engineering 27
Physics 05 Defence Studies 19 English Lit. 29
Mathematics 06 Management 20 Urdu Lit. 30
Geography 08 Political Science & International Relations 21 Arabic Lit. 31
Economics 09 History 22 Hindi Lit. 32
Sociology 11 Social Work 23 Parsian Lit. 33
Philosophy 12 Anthropology 24 Sanskrit Lit. 34
Geology 13 Commerce & Accountancy 35
Psychology 14 Public Administration 36
Botany 15 Agriculture Engineering 37
Note: A candidate will not be allowed to offer more than one subject from the-
Group ''A' Group ''B' Group ''C'
1. Social Work 1. Mathematics 1. Agriculture
2. Anthropology 2. Statistics 2. Animal Husbandry and Veterinary Science
3. Sociology
Group ''D' Group ''E' Group ''F'
1. Civil Engineering 1. English Literature 1. Political Science & International Relations
2. Mechanical Engineering 2. Hindi Literature 2. Public Administration
3. Electrical Engineering 3. Urdu Literature Group ''G'
4. Agricultural Engineering 4. Arabic Literature 1. Management
5. Persian Literature 2. Public Administration
6. Sanskrit Literature"
The Commission conducted preliminary examination on 27.2.2005 wherein all the petitioners appeared. The result was declared in September, 2005. All the petitioners were declared successful whereupon they were required to appear in the main examination held between 19.5.2006 to 3.6.2006. The Commission declared the result of written examination on 24.3.2007 wherein 672 candidates have been declared successful and have been required to appear in viva voce. None of the petitioners has been declared successful in the written examination, aggrieved whereagainst, they have filed the present writ petitions alleging that though they have performed well in the main written examination but the Commission has not finalized the result of the written examination on the basis of the actual marks obtained by the candidates in the main written examination. On the contrary it has prepared the result of the main written examination by applying scaling method known as "Linear Standard Score Method", in pursuance whereto some of the candidates who have secured, in reality, much lesser marks have been declared successful while others who have secured higher marks have been declared unsuccessful. It is contended that adoption of "Linear Standard Score Method" in the aforesaid examination is illegal and contrary to the law laid down by the Apex Court in Sanjay Singh (Supra).
On behalf of respondents no. 2 and 3 counter affidavit has been filed stating that after receiving requisitions from various departments of the State Government, the Commission issued Advertisement No. A-2/E-1/2004 and the last date for receiving applications was 11.6.2004. The preliminary examination was held on 27.2.2005 and its result was declared on 31.8.2005. 59230 candidates appeared in preliminary examination, out of which 3690 were declared successful who could have appeared in the main written examination. The main written examination was held between 19.5.2006 to 3.6.2006 wherein only 2831 candidates appeared. The result was declared on 24.3.2007 and the Commission found 608 candidates qualified to appear for interview and letters inviting them for interview have also been issued to them. It is said that the examinations conducted by the Commission are governed by the "U.P. Public Service Commission (Procedure and Conduct of Business) Rules, 1976" (hereinafter referred to as the "Business Rules, 1976"). It is also said that the answer scripts of main written examination were evaluated in the month of November, 2006 when the Z-Scaling System as per Commission's decision dated 7.9.1996 and 30.3.1999 was applied. The scaling system in pre examination was applied at subject level, and in the main examination at examiner level, as per the recommendations of the experts. At that time the scaling system was already upheld by the Apex Court in U.P. Public Service Commission Vs. Subhash Chandra Dixit and others, JT 2003 (8) SC 531 and therefore there was no illegality in following the same. Subsequently the Apex Court decided Sanjay Singh (Supra) on 9.1.2007 but the said judgment is confined to the selection of the Civil Judge (Junior Division) which is governed by Judicial Service Rules, 2001 (hereinafter referred to as "JRS, 2001"). The Apex Court has permitted the Commission to follow scaling system in other matters till another system is adopted. Hence the judgment of Sanjay Singh (Supra) has neither any application to the selection in question nor otherwise renders it illegal and contrary to law. In particular reliance has been placed by the respondents no. 2 and 3 to para 24 of the judgment in Sanjay Singh (Supra). It is also said that the judgment in Sanjay Singh (Supra) is not retrospective. Since the answer sheets were evaluated in November, 2006, the judgment in Sanjay Singh (Supra) pronounced on 9.1.2007 would not vitiate the aforesaid selection. It is said that the petitioners have secured lesser marks than the last selected candidates who have been called for interview and therefore they have no cause of action to maintain these writ petitions.
We have heard Sri M.D. Singh ''Shekhar', Sri Arvind Srivastava and Sri Pankaj Kumar Srivastava, learned counsels for the petitioners, learned Standing Counsel appearing for the respondent no. 1 and Sri P.S. Baghel, learned counsel appearing for the Commission.
Learned Standing Counsel appearing on behalf of the State of U.P. has not filed any counter affidavit separately. Since the matter pertains to selection conducted by the Commission, he has adopted and followed the stand taken by the Commission in pleadings and oral arguments.
Learned counsels for the petitioners have opposed adoption of "Linear Standard Score Method" in preparation of result of the main written examination mainly on the following grounds:-
1. Like JRS, 2001 which came up for consideration before the Apex Court in Sanjay Singh (Supra), the recruitment rules of various services for which the Commission was required to make recruitment in the case in hand also contain pari materia provision like Rule 20(3) JRS, 2001. The selection thus is required to be conducted by the Commission on the basis of the final list of selected candidates in order of their proficiency as disclosed by the marks finally awarded to the candidates in the written examination and in the interview. Therefore, hypothetical and assumed marks cannot be the basis for selection. The result of the written examination having been prepared on the basis of assumed marks is vitiated in law and contrary to the dictum of Apex Court in Sanjay Singh (Supra).
2. The marks calculated by applying "Linear Standard Score Method" would result in scaled scores or scaled marks and cannot be considered to be marks awarded to the candidates in the written examination and therefore, scaling is violative of the relevant rules of recruitment of various services up for consideration before the Commission. The Apex Court held where the candidates in a competitive examination have the option of selecting one or few amongst a variety of heterogeneous subjects and number of students taking different options also varying, in order to prepare a common merit list of such candidates the experts have adopted the method known as scaling which places score from different tests or test in diferent subjects on to a common scale. There are different methods of statistical scoring namely, Standard Score Method, Linear Standard Score Method, normalize equal percentile method etc. The scaling method however, adopted by the Commission to reduce examiners variability has been held to be illegal and arbitrary by the Apex Court in Sanjay Singh (Supra). It may adopt the same to find a common base across different subjects. In the main written examination the scaling system has been adopted by the Commission, as admitted in the counter affidavit, to reduce examiners variability, the same is in the teeth of the law laid down by the Apex Court in Sanjay Singh (Supra).
3. The precaution and steps which are normally required to be adopted before applying scaling in regard to marks awarded by the examiners in the same subject has not been observed and in a mechanical way the scaling method has been followed in the same manner as it has been followed in the past ignoring strong deprecation of the said procedure by the Apex Court in Sanjay Singh (Supra). The judgment in Sanjay Singh (Supra) was pronounced on 9.1.2007 and the result of the main written examination has been declared on 24.3.2007 yet the directions issued by the Apex Court have been ignored and thereby the career of more meritorious and competent candidates is being ruined by application of a method which has already been deprecated by the Apex Court and held to be illegal.
Sri Baghel, on the contrary, has opposed the writ petitions and contended that the Apex Court has not condemned scaling method in its entirety. The judgment permits continuance of scaling system to be followed till any other suitable method is found. Further the judgment is not retrospective but is applicable to subsequent examinations. The judgment is confined to Judicial Service and not to others. It is contended that the procedure adopted by the Commission is perfectly correct and within the four corners of the observations made by the Apex Court in Sanjay Singh (Supra).
The short question up for consideration, therefore, in the light of the rival submissions as noted above is whether the adoption of scaling method i.e. "Linear Standard Score Method" by the respondents in the present selection i.e. result of main written examination, is valid and correct or not.
The Commission has admitted in its counter affidavit that in the compulsory papers the subject of General Studies, Paper 1 and 2 are of objective types, the assessment is made by computer and therefore scaling system is not applied thereto since there is no examiner variability. The papers of General Hindi and Essay, being conventional type are assessed by more than one examiner and therefore scaling system is applied on examiner level. In para 16 of the writ petition it has been stated that in the four optional papers in different subjects also the Commission has applied scaling method i.e. "Linear Standard Score Method" and in reply thereto in para 18 of the counter affidavit, the Commission has referred to para 24 of the judgment in Sanjay Singh (Supra) but has not said that the scaling system has not been adopted in optional subjects. During the course of argument, learned counsel appearing for the Commission stated at the bar that the scaling method has been adopted in all six subjects, compulsory and optional, other than two compulsory subject where the assessment is through computer, and therefore it is an admitted position that the result of main written examination has been declared by the Commission by applying scaling method in respect to two compulsory and four optional subjects. The manner, method and procedure of the system has not stated in detail in the counter affidavit but during the course of argument it is stated that in the manner it has been done in the past, the same has been followed in the present examination also. Reference is made to para 22 of the counter affidavit stating that since 1996 it has continuously been followed in the same manner. We, therefore, are justified in treating that the commission has applied scaling method in all respect, in the same manner as it was up for consideration before the Apex Court in Sanjay Singh (Supra). It would, therefore, be appropriate to consider as to what has been held by the Apex Court in respect to the scaling method in the said judgment since the issue has already been dealt with by the Apex Court. In para 17 of the judgment, while upholding the right of the Commission to regulate the manner in which it will conduct examination and value the answer scripts, the Apex Court has clearly hold that its subject to the recruitment rules of the concerned service. It has observed as under:-
"Therefore, it is for the Commission to regulate the manner in which it will conduct the examination and value the answer scripts, subject, however, to the provisions of the Judicial Service Rules. If the Commission has made Rules to regulate the procedure and Conduct of the examination, they will naturally apply to any examination conducted by it for recruitment to any service, including the judicial service. But where the Judicial Service Rules make a specific provision in regard to any aspect of examination, such provision will prevail, and the provision of PSC Procedure Rules, to the extent it is inconsistent with the Judicial Service Rules, will be inapplicable. Further, if both the Rules have made provision in regard to a particular matter, the PSC Procedure Rules will yield to the Judicial Service Rules."
Therefore, the procedure rules of the Commission will have to yield to the concerned Recruitment Rules of the service, if any, in the case of inconsistency. We tried to find out whether in the services for which the recruitment has been made by the Commission in the case in hand, the recruitment rules contain a provision similar to that of Rule 20 (3) JSR, 2001. Sri Baghel seriously contended that similar provision do not exist though did not place the relevant rules before the Court. The learned counsels for the petitioners on the contrary said that pari materia provisions exit and some of the rules were cited at the Bar. Before proceeding further it would be appropriate to examine some of recruitment rules of the various services for which recruitment is being made by the Commission in the examination in question.
The recruitment to the post of Deputy Collector is governed by "U.P. Civil Service (Executive Branch) Rules, 1982" and Rule 15 which provides for procedure for direct recruitment, sub-Rule 3 and 4 thereof reads as under:-
"(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Caste, Scheduled Tribes and others under rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtained higher marks in the written examination shall be placed higher in list. The Commission shall forward the list to the appointing authority. The number of names in the list shall be equal to the number of vacancies but if for any reason some persons on the list are not appointed, the appointing authority may, within one year from the date of receiving such list, require the Commission for a supplementary list sufficient to fill in the remaining vacancies." (emphasis added)
Recruitment rules in respect to other services in question are also pari materia and some of the relevant rules of services/posts in question are as follows:-
"Sr. No. Service/Post Title of the Rule Relevant Rules
1. Assistant Register, Co-operative Societies U.P. Cooperative Services Rules, 1979 Rule 15 (3) & (4)
2. Block Development Officer The State Development Service (Gazatted) Rules, 1972 Rule 16(4)
3. Asstt. Commissioner Trade Tax U.P. Sales Tax Service Rules, 1983 Rule 15 (3) & (4)
4. Distt. Commandant Home Guard U.P. Homeguard Sewa Niyamawali, 1982 Rule 15 (3) & (4)
5. Distt. Cane Officer U.P. Cane (Gazetted) Service Rules, 1979 Rule 15 (3) & (4)
6. Distt. Panchayat Raj Officer U.P. District Panchayat Raj Officers Service Rules, 1979 Rule 15 (3) & (4)
7. Trade Tax Officer Grade-II U.P. Sales Tax Service Rules, 1983 Rule 15 (3) & (4)
8. Treasury Officer/ Accounts Officer U.P. Finance and Accounts Service Rules, 1980 Rule 15 (3) & (4)
9. Social Welfare Officer U.P. Harijan and Social Welfare Gazetted Officers Service Rules, 1991" Rule 14 (4) & (5)
Therefore, in general, in the recruitment rules of the various services for which the Commission is making recruitment herein also, it is clearly provided that the Commission shall prepare the list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. The provision in the recruitment rules of the various services which are in question, in our view, are pari materia with Rule 20(3) of JRS, 2001 which was up for consideration before the Apex Court and on that account, therefore, no distinction can be made out for application of the judgment in Sanjay Singh (Supra). The distinction sought to be made out by the Commission on the ground that Sanjay Singh's judgment is confined to the case of Judicial Service is unjust, unfounded and incorrect. We have thus no hesitation to reject it.
In para 19 of the judgment the Apex Court with reference to Rule 20(3) of JRS, 2001 clearly held that since the provision similar to proviso to Rule 51 of the Public Service Commission Procedure Rules is not contained therein, it is not possible to read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note (i) of Appendix II of JRS, 2001. It also held that Rule 20(3) and Note (i) of Appendix II has to be read as they are without the addition of the proviso to Rule 51 of PSC Procedure Rules and after observing so, the Apex Court held as under:-
"If so, what can be taken into account for preparing final list of selected candidates, are 'marks finally awarded to a candidate' in the written examination and the interview. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be 'the final marks awarded to the candidate'. Where the Commission is of the view that there is 'examiner variability' in the marks (due to strict or liberal assessment of answer scripts) or improper assessment on account of erratic or careless marking by an examiner, they can be corrected appropriately by moderation. The moderation is either by adding (in the case of strict examiners) or deducting (in the case of liberal examiners) a particular number of marks which has been decided with reference to principles of moderation applied. If there is erratic or careless marking, then moderation is by fresh valuation by another examiner. Therefore, the marks assigned by the examiner as moderated will be the marks finally awarded to the candidates or marks obtained by the candidates. Moderation, it has to be held, is inherent in the evaluation of answer scripts in any large scale examination, where there are more than one examiner." (emphasis added)
In para 20 of the judgment the Court held that the "marks awarded" would include the "marks awarded on alternation by moderation". Thereafter it proceeded to consider whether the scaled scores or scaled marks awarded to the candidate in the written examinations would answer the said requirement and decided the issue in negative as it apparent from para 21 of the judgment which reads as under:-
"But the question is whether the raw marks which are converted into scaled scores on an artificial scale which assumed variables (assumed mean marks and assumed standard deviation) can be considered as 'marks finally awarded' or 'marks obtained'. Scaled scores are not marks awarded to a candidate in a written examination, but a figure arrived at for the purpose of being placed on a common scale. It can vary with reference to two arbitrarily fixed variables, namely 'Assumed Mean' and 'Assumed Standard Mean'. We have dealt with this aspect in greater detail while dealing with question (iii). For the reasons given while considering question (iii), we hold that 'scaled scores' or 'scaled marks' cannot be considered to be 'marks awarded to a candidate in the written examination'. Therefore, scaling violates Rule 20(3) and Note (i) of Appendix-II of Judicial Service Rules." (emphasis added)
The Apex Court formulated question no. 3 as under:-
"(iii) Whether the 'scaling system' adopted by the Commission is arbitrary and irrational, and whether the decision in S. C. Dixit (supra) approving the 'scaling system' requires reconsideration ?"
The answer to the said question has been dealt with in para 23 to 40 of the judgment and in para 35 it has declared the said scaling method adopted by the Commission, arbitrary and irrational.
The Apex Court considered as to what "scaling" meant and in para 25 observed as under:-
"Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination."
In para 27 it observed that some examining body like Commission instead of following moderation has adopted scaling not only where there is need to find common base across different subjects but also as an alternative to moderation, to reduce examiner variability i.e. where different examiners evaluate answer scripts relating to the same subjects. Thereafter, in para 32 the Court held as under:-
"As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations."(emphasis added)
After deprecating and declaring scaling system arbitrary, the Court found the necessity for the Commission to identify a suitable system of evaluation by appointing, if necessary, another committee of experts and till such new system is adopted, permitted the Commission to follow moderation system setout in para 23 of the judgment with appropriate modifications. In para 38 of the judgment, dealing with the contention of the Commission that scaling has been accepted as a standard method of evaluation in the some of the earlier judgments, the Court held as under:-
"All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of scaling, where a comparative assessment is to be made of candidates having option to take different subjects. The question is whether scaling, in particular, linear standard scaling system as adopted by the Commission, is a suitable process to eliminate 'examiner variability' when different examiners assess the answer scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of 'scaling' used by the Commission."
Thus it is evident that in order to form a common base where the candidates have taken examinations in different optional subjects, the Commission was allowed to adopt the said system of scaling to bring the candidates appearing in different subjects on the common platform but in the same subject, for the purpose of examiner's variability, the adoption of scaling system has been deprecated and held arbitrary and illegal.
The contention of the learned counsel for the Commission that the judgment is applicable prospectively and not to the selections already held in our view is totally misplaced and appears to be a conscious denial of observance of a law laid down by the highest Court of the land. While answering question no. 4, the Court held that the selection of judicial officers had already completed, the selected candidates had already appointed and were working as judicial officers. In these circumstances it held that the decision in Sanjay Singh (Supra) will be prospective in its application and will not affect the selections and appointments already made in pursuance to 2003 examination. In the case in hand, it cannot be said that even the selection was finalized. The Commission has admitted that only evaluation of the answer scripts had completed by November, 2006. That itself does not mean that the selection was finalized or completed in November, 2006. Despite of our repeated query the Commission did not inform as to when and at what stage the scaling method was applied for the purpose of preparing the result in question but from the method they used it is evident that only after the marks awarded by the examiners are available to the Commission, thereafter only they would have applied the scaling method for the purpose of finding out the marks awarded to the candidates and on that basis the merit list has been prepared. Since the assessment of the answer sheets by various examiners was completed as admitted by the Commission by end of November, 2006, rest of the work i.e. application of scaling system is obviously subsequent thereto. Since the result has been declared after more than two and half months from the date the judgment in Sanjay Singh (Supra) was pronounced by the Apex Court, the Commission had enough time to act and proceed in the manner as directed by the Court in the said judgment. In our view it cannot be said that the said judgment has no application to the selection in question and the contention of the Commission otherwise is rejected.
In the result, the writ petitions succeed and are allowed. The result of the main written examination of Combined State/Upper Subordinate Service (Backlog/Special Recruitment) Examination, 2004 declared by the Commission on 24.3.2007 is hereby quashed and the Commission is directed to prepare a fresh result of the said examination in the light of the observations made above and the directions issued by the Apex Court in Sanjay Singh (Supra).
In the facts and circumstances of the case, there shall be no order as to costs.
Dated/-25.05.2007
Avy
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