SLP FILED IN SUPREME COURT OF INDIA AGAINST FAULTY MODERATION SYSTEM IN CIVIL SERVICES MAIN EXAM.

SYNOPSIS AND LIST OF DATES

The present petition poses for the kind consideration of this Hon’ble Court wherein the High Court erred in adopting a hypertechnical approach and without applying its mind to the factual matrix of the case, dismissed the  Review petition preferred by the petitioner in limnie, on the basis of technicalities stating that, “the candidates who have successfully cleared have not been impleaded as respondents, the petitioner is simply intending to keep the issue alive and declining the request to adjourn the matter, dismissed the Review petition for non prosecution”.

The High Court failed to appreciate that the method of moderation of marks applied by UPSC in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination is unreasonable and arbitrary and thus violative of Articles 14 and 16 of Constitution of India.

The Courts below failed to appreciate that the method of scaling of marks applied by UPSC in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination was held to be arbitrary and illegal by Supreme Court in the decision reported as Sanjay Singh and Anr. v. U.P. Public Services Commission: (2007) 2 Scale 1. To bring home the point that scaling was being applied by UPSC in evaluating answer sheets of the candidates pertaining to Main Examination particular emphasis may be placed on the averment contained in the additional affidavit filed by UPSC in the High Court in Writ Petition (Civil) No. 1271/2006 titled 'Neel Ratan v. Union of India and Ors.' that 'the Commission, therefore, considers the statistical position of each subject to find out if the valuation has been strict or liberal by the Head Examiner/Paper Setter and does statistical moderation by linear transformation wherever considered necessary'.

The courts below failed to appreciate that the aforesaid averment when read in conjunction with the report titled "Statistical moderation of teachers assessment" commissioned by the qualifications and curriculum authority, United Kingdom and prepared by John Wilmut and Jennifer Tuson (which report was filed and particularly relied by the petitioner before the learned Tribunal), brings out that statistical moderation of marks by linear transformation is nothing but linear scaling of marks.

The Courts below failed to appreciate the overwhelming material produced by the petitioner strongly suggesting that there may have been manifold irregularities in the Civil Services Examination conducted by UPSC in the years 2007-2009 and faced with such a situation, it was incumbent upon the Courts below  to direct UPSC to produce the answer-sheets of the petitioner pertaining to Main Examination and redress the doubts raised by the petitioner regarding the sanctity of the said examination(s).

The Courts below failed to appreciate the flaws/facts shown by petitioner in Moderation/Examination System such as mix up of Roll Numbers of other examinations, faulty randomisation, lack of Model Answersheets/Instuction sheet, overwriting  on marks given by original examiner multiple times, disproportionate selection from each subject and disproportionate selection from all slots of roll numbers, inadequate sample size, faulty sampling method and overall neglect to basic requirements to use any statistical method for statistical moderation/scaling, in disregard to the law held by this Hon’ble Court in Civil Appeal No. 6454 of 2011 in CENTRAL BOARD OF SECONDARY EDUCATION & Anr. v. Aditya Bandopadhyay & Ors regarding providing candidates photocopy of their answersheets by denying same on various grounds.

The Courts below failed to appreciate that in recent past, a number of instances have come to light intimating serious irregularities in the conduct of the examinations. Those instances show that the UPSC is not infallible and that the recruitment process of UPSC is not full proof. It is further submitted that where many instances have come to public knowledge, there may be several others which may not come into light due to the closed system of recruitment process and this itself hurts the integrity of the highest agency of recruitment in India.

That with respect to  the allegations pertaining to method adopted by UPSC for evaluation of answer sheets of candidates pertaining to the Main Examination being arbitrary and illegal, following averments were made in the application. It is respectfully submitted that the said lower marks of the Petitioner may be due to the manner of evaluation applied by the Respondent for evaluation of Answer-Books of Main's Examination which includes the scheme of Moderation as disclosed by the Respondent in several cases including the case of Subash Chandra Dixit v. U.P. Public Service Commission S.L.P. (civil) 23723/2002 before Hon'ble Supreme Court and before Hon'ble Delhi High Court in case of Neel Ratan v. union of India and Ors. CWP No. 1271 of 2006.

This Hon’ble Court in the case of Sanjay Singh v. U.P. Public Service Commission:                            (2007) 3 SCC 720 petitions under Article 32 of Constitution of India were filed before Supreme Court by the unsuccessful candidates who appeared in the examinations conducted by Uttar Pradesh Public Service Commission (herein after referred to as the "UPPSC") in the year 2003 for recruitment to the posts of Civil Judge (Junior Division). It was held by this Hon’ble Court that the material placed does not disclose that the Commission or its expert committee have kept key factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another committee of experts.

CHRONOLOGICAL LIST OF EVENTS:

                                 Every year, Union Public Service Commission (hereinafter referred to as the "UPSC") conducts Civil Services Examination for the purposes of recruitment to Indian Administrative Service and other allied services.

                                 The Civil Services Examination comprises of two successive stages; namely,

(i)                  Civil Services Preliminary Examination (Objective Type) for the selection of candidates for appearing in the main examination, and

(ii)                Civil Services Main examination (Written and Interview) for the selection of candidates for the various services and posts.

                                 The Preliminary Examination consists of two papers of objective type (multiple choice questions) in two subjects, namely, General Studies and one subject to be selected from the list of optional subjects set out in paragraph 2 of the plan of examinations notified by the UPSC and carries 150 and 300 marks respectively. The marks obtained in the preliminary examination are not considered and counted for determining the final order of merit of the successful candidates at the main examination.

                                 The candidates who are declared successful in the Preliminary Examination are required to appear at the Main Examination which consists of written examination as well as viva voce test. The written examination consists of nine papers; namely, two papers each for two optional subjects, two papers pertaining to General Studies, one paper pertaining to English, one paper pertaining to Regional Language and one paper pertaining to an essay written by the candidate. The marks pertaining to English and Regional Language are not counted for purposes of ranking in the examination. The papers pertaining to optional subjects and General Studies carry 300 marks whereas the paper pertaining to essay carries 200 marks, thus totaling 2000 marks in all. The viva voce test carries 300 marks. The marks obtained by a candidate in the Main Examination (written as well as viva voce) determine his final ranking. The successful candidates are allotted various services having regard to their ranking in the examination and the preferences expressed by them for various services and posts.

2007-2009              The petitioner herein is one of the few civil services aspirants, who appeared in Civil Services Examinations conducted by UPSC in the years 2007, 2008 and 2009. The petitioner successfully cleared the Preliminary Examination in the year he sat, but not recommended finally  after the Main Examination.

2009                        Aggrieved by the marks awarded to him in the Main Examination, the petitioner namely, Prashant Ramesh Chakkrawar and Pranav Kumar Vatsa, filed O.A. No. 1565/2010 under Section 19, Administrative Tribunals Act, 1985 along with other civil services aspirants before the Principal Bench of Central Administrative Tribunal, New Delhi inter-alia, alleging that the possibility that there were irregularities in the Civil Services Examination conducted by UPSC in the years 2007-2009 cannot be ruled out inasmuch as various irregularities have been detected in the Civil Services Examinations conducted in the past several years and that the process adopted by UPSC for evaluation of answer sheets of the candidates pertaining to Main Examination is arbitrary and illegal.

13.05.2009             The Ld. Tribunal dismissed the O.A. No. 1565/2010 filed by the petitioner herein, so as to keep parity with other similar cases.

18.09.2010             The petitioner filed WP (C) No. 6586/2010 before the Hon’ble High Court of judicature at New Delhi against the order dt. 13.05.2009.

28.09.2010             The above writ petition was listed alongwith a batch of matters having similar issues and after the course of hearing, the judgment was reserved by the Hon’ble High Court without issuing notice to the respondents.

05.10.2010             (Impugned Order) The Hon’ble High Court of Judicature at New Delhi dismissed all the writ petitions including WP (C) No. 6586/2010 by a common order.

29.07.2011             (Impugned Order) A Review petition RP Nos. 490/2010 was preferred by the petitioner here before the Hon’ble High Court which was dismissed by the Hon’ble Court for non-prosecution.

                                 Hence, the instant SLP.

                                

IN THE SUPREME COURT OF INDIA

                              CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.                     OF 2011.

(Petition under Art. 136 of the Constitution of India against the impugned Final Judgment and order dated 29.07.2011 passed by the High Court of Judicature at New Delhi RP Nos. 490/2010 in WP (C) No. 6586/2010).

WITH PRAYER FOR INTERIM RELIEF

IN THE MATTER OF:-

DR. PRASHANT RAMESH CHAKKARWAR   

----       PETITIONER

AND

UNION PUBLIC SERVICE COMMISSION (UPSC)  & ORS.                                                                                                                          

 ----  RESPONDENTS

FOR INDEX PLEASE SEE INSIDE

    ADVOCATE FOR THE PETITIONER: MR. AMIT SHARMA

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(ORDER XVI RULE 4(1)(a))

SPECIAL LEAVE PETITION (CIVIL) NO.                  OF 2011.

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

BETWEEN                                            POSITION OF PARTIES

                                                             IN THE            IN THIS           

                                                       HIGH COURT      HON’BLE COURT

DR. PRASHANT RAMESH CHAKKARVAR,

S/O MR. RAMESH D. CHAKKARWAR

RAMESH SADAN, VASANT NAGAR,

UMARKHED, DIST. YAVATMAL,

MAHARASTRA.

                                     --                PETITIONER        PETITIONER

AND

1.      UNION PUBLIC SERVICE COMMISSION

DHOLPUR HOUSE

SHAHJAHAN ROAD,

NEW DELHI-69

2.      UNION OF INDIA

THROUGH MINISTRY OF PERSONNEL,

PUBLIC GRIEVANCES AND PENSION,

DEPARTMENT OF PERSONNEL AND TRAINING,

THROUGH SECRETARY,

NEW DELHI.

-- RESPONDENTS       RESPONDENTS

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA.

                                                           THE HUMBLE PETITION OF

                                                           PETITIONER ABOVENAMED

 

           MOST RESPECTFULLY SHOWETH:-

1.      That the petitioner is filing this Special leave petition against the impugned orders dated 05.10.2010 in WP (C) No. 6586/2010 and dated 29.07.2011 in RP Nos. 490/2010 passed by the Hon’ble High Court of Judicature at New Delhi.

2.      QUESTIONS OF LAW:-

A.        Whether the High Court erred in adopting a hypertechnical approach and without applying its mind to the factual matrix of the case, dismissed the  Review petition preferred by the petitioner in limnie, on the basis of technicalities?

B.       Whether the High Court while exercising its extraordinary jurisdiction under Article 226 is duty bound to take all the facts and circumstances into consideration and decide for itself whether a case for interference is made out or not?

3.   DECLARATION IN TERMS OF RULE 4 (2)

That the petitioner states that no other petition seeking leave to appeal has been filed by him against the impugned Order.

4.      DECLARATION IN TERMS OF RULE 6

That the Annexures produced alongwith the Special Leave Petition are the true copies of the pleadings/documents which formed part of the records of the case in the Court below against whose orders the leave to appeal is sought for in this petition.

5.      That the petitioner is filing said special leave petition interalia amongst the following:-

                                  GROUNDS

A.       BECAUSE the High Court erred in adopting a hypertechnical approach in the instant case and without applying its mind to the factual matrix of the case, dismissed the  Review petition preferred by the petitioner in limnie, on the basis of technicalities stating that, “the candidates who have successfully cleared have not been impleaded as respondents, the petitioner is simply intending to keep the issue alive and declining the request to adjourn the matter, dismissed the Review petition for non prosecution”.

B.       BECAUSE the High Court failed to appreciate that the method of moderation of marks applied by UPSC in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination is unreasonable and arbitrary and thus violative of Articles 14 and 16 of Constitution of India.

C.      BECAUSE the Courts below failed to appreciate that the method of scaling of marks applied by UPSC in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination was held to be arbitrary and illegal by Supreme Court in the decision reported as Sanjay Singh and Anr. v. U.P. Public Services Commission: (2007) 2 Scale 1. To bring home the point that scaling was being applied by UPSC in evaluating answer sheets of the candidates pertaining to Main Examination particular emphasis may be placed on the averment contained in the additional affidavit filed by UPSC in the High Court in Writ Petition (Civil) No. 1271/2006 titled 'Neel Ratan v. Union of India and Ors.' that 'the Commission, therefore, considers the statistical position of each subject to find out if the valuation has been strict or liberal by the Head Examiner/Paper Setter and does statistical moderation by linear moderation wherever considered necessary'.

D.      BECAUSE the courts below failed to appreciate that the aforesaid averment when read in conjunction with the report titled "Statistical moderation of teachers assessment" commissioned by the qualifications and curriculum authority, United Kingdom and prepared by John Wilmut and Jennifer Tuson (which report was filed and particularly relied by the petitioner before the learned Tribunal), brings out that statistical moderation of marks by linear transformation is nothing but linear scaling of marks.

E.       BECAUSE the Courts below failed to appreciate the overwhelming material produced by the petitioner strongly suggesting that there may have been manifold irregularities in the Civil Services Examination conducted by UPSC in the years 2007-2009 and faced with such a situation, it was incumbent upon the Courts below  to direct UPSC to produce the answer-sheets of the petitioner pertaining to Main Examination and redress the doubts raised by the petitioner regarding the sanctity of the said examination(s).

F.       BECAUSE the Courts below failed to appreciate some of the flaws/facts       shown by  petitioner in moderation/examination system as explained below:

                                      i.      It is evident from the additional affidavit given by UPSC in Writ      Petition (C) No. 1271/2006 that the UPSC applies a system of moderation/scaling on the marks awarded by the examiners in the compulsory as well as optional subjects on various grounds like assumed interexaminer and intersubject variability. It may be noted that the official Gazette of the Ministry of Personnel supplied along with the form for the Civil services (main) examination 2008 nowhere mentions that any system of moderation/scaling would be applied to change the marks awarded by the examiner to the candidates. Introducing such a practice at the back of the petitioner and without his knowledge places him at a gross disadvantage and leaves vide scope for a lot of questions to be raised As is evident from the additional affidavit given by UPSC in Writ Petition (C) NO. 1271/2006 the examiners of the various subjects meet before evaluation of answer books of the written papers to set the standards and weightage for various aspects of answers and also carry out sample evaluation. This leaves no scope for subjectivity contrary to the claims of UPSC and thus no need for moderation/scaling in the written examination.

Further, as per the statement given by UPSC in WP (C) 2929/2007 dated 4.05.2007 in the Hon'ble High Court of Delhi, the UPSC does not prepare any answer keys for the mains (UPSC in decision to  Appeal no CIC/WB/A/2007/00694 of 2008 has also clarified that No Instruction sheets as an alternative to Model answers are maintained by UPSC). This is contrary to the norms of evaluation fixed as per UPSC affidavit in WP (C) 1271/2006.

Further, this goes contrary to the basic premise of application of interexaminer moderation i.e. examiner's deviation from the norms fixed for evaluation (which are evidently missing as per the statement given in WP (C) 2929/2007.) The norms of evaluation, thus, evidently do not exist in writing. No examiner can remember in ditto the oral discussion of norms for a period of evaluation extending over days and months. Even on intersubject moderation there is no clarity on who shall decide the variation as claimed in the difficulty level of different optional subjects. It is pertinent to note that the various choices offered to the candidate within a single question paper of a single optional subject ultimately leads to 288 different combinations of same question paper with atleast one question different, from which the candidate has complete freedom to choose any one combination. Nobody probably takes into account the choice made by an individual candidate which may vary from too difficult to too easy within the same paper because of such large number of combinations.

Thus, to decide on the difficulty level from overall appearance of the paper or from maximum marks scored in different subjects will place those candidates at disadvantage who have consciously chosen most difficult set due to an inherent in depth knowledge of the subject. Similarly there were 3888 different sets of question papers for the subject of General Studies I and 324 different sets for the subject of General Studies II from which the candidates had complete freedom to choose anyone set respectively. To decide upon the subjective liberality/strictness of marking based on a limited number of samples drawn from each examiner which will not be representative of the complete number of sets of question papers again amounts to treating unequals as equals and thus violates the fundamental rights of the candidates.  Further, perusal of the book on scaling –“Scaling Techniques What Why and How” by Natarajan and Gunasekaran will in itself demonstrate the defects in application of moderation/scaling. The above stated book accepts in the preface itself that scaling is an unknown concept in India, has to be applied only on mass conducted examinations where standards for various examiners are different. The book accepts at page 8,46,76, 80 of 1986 edition Association of Universities press, that only one university all over India has ever applied the system and that too where answer books exceed lakhs and lakhs of candidates, with number of examiners exceeding thousands . This is completely different from the situation in Civil Services (main) 2008 Examination where total candidates were around 9000. The perusal of the above stated book demonstrates that the system is applied only to determine pass/fail cutoff of candidates and that too in mass conducted examinations like those of matriculation. Further, it would also be clear from the same book that the system of moderation/scaling has to be applied only where candidates from different universities/institutes/boards following different standards are to be admitted to a single institute or course based on the marks scored by them in their respective institutes. At page 34, 1986 edition the authors admit that candidates writing an examination in English are at an inherent disadvantage qua those candidates writing in mother tongue.

Thus, there should not have been a need to further downscale applicant's marks as he wrote his examination in English. The book in its preface accepts that scaling has to be applied uniformly on all candidates. Further, research papers on statistical moderation prove that the method lacks credibility, validity, transparency, accountability and acceptability. Also it has been given up all over the world as a method of bringing parity between various examinations. UPSC, by its own admission in an affidavit submitted in WP (C) 1271/2006 before the Hon'ble High Court of Delhi, uses the method of Linear Transformation for moderation. However, in SLP 23723/2002 before the Hon'ble Supreme Court of India, UPSC in a counter affidavit discredited the same system. Also as per UPSC’s own admission in the affidavit in SLP 23723/2002, Kothari Commission while recommending use of scaling, had recommended a continuous review of the system. Such a review has probably never taken place. Even if such a review is shown to have been done, in view of the facts stated, it remains incomplete and faulty.

                                     ii.      Further it has come to the knowledge of the petitioner through the letters from UPSC dated 8/3/07 & 31/5/07 in response to a request under RTI Act 2005 that UPSC has been indulging in a mix up of roll no. of various examinations conducted by UPSC each year. Under such circumstances a lot of doubts and questions remain unanswered regarding the credibility of the whole system. Further, under such circumstances the randomization of roll numbers and thus of answers sheets and thus normal distribution essential for application of any statistical method becomes absolutely faulty. This in itself is a sufficient ground to strike down the application of scaling as well as moderation. Since the process from filing of the application form to allotment of the roll no. is all computerized as the application form is computer readable and a special column exists on the form to disclose the information regarding the examination for which the candidate is applying, there is no question of any mix up of roll no. of various examinations. Occurrence of such a mix up itself demonstrates some sort of manipulation going on in the UPSC.

As per the information, the roll no. allotted for Civil Services Examination each year are much more than the total number of candidates who apply for the same. This renders the whole process an exercise full of maladies. As per the information evident from the selection lists of 2001-2006, out of the total selections each year, almost half of the selections take place from 1^st 50,000 roll no and almost 70% of the selection is from 1^st 1,00,000 roll no leaving the remaining 3,00,000 candidates whose roll no fall beyond 1,00,000 high and dry. This also proves lack of proper randomization and that the method of selection is faulty. This major fault has been highlighted also in the WP (C) 165 of 2005 in the Supreme Court Of India decided on 9/1/2007 Sanjay Singh and Anr. Vs U.P. Public Service Commission where the scaling applied using the same method as done by UPSC i.e. Linear Transformation was struck down on this ground as taking candidate capacity to be equal the selection should be proportionate in each block. Proper randomization is the first and a very essential step for application of any statistical method like moderation or scaling. Also it may be noted that as explained at page 148 in the book "Scaling Techniques What Why and How" randomization does not lead to any increase in the roll no. An explanation for increase in roll no due to randomization as given by UPSC vide letter dated 31/5/07) leads to the conclusion of faulty randomization. This, therefore, precludes the application of any statistical method as the result will be completely wrong under such circumstances.

                                   iii.      Further, UPSC in its additional affidavit in WP (C) 1271/2006, has explained the purpose of intersubject moderation as to bring in a parity between various subjects by removing the variations in difficulty level in various subjects and the variation in the checking of these papers. Thus, it becomes evident that the purpose of such methodology is to provide a level playing field for the candidates opting for different optional subjects. However, on the contrary, as is evident from the information provided under RTI Act 2005 by UPSC regarding no. of candidates selected with various optionals from 2003-2006 there is vide variation between selections from various optionals. Though the selections from each optional should have been proportionate considering the equal distribution of candidate capacity between various subjects. Contrary to this the selections vary from 0 % in one to upto 50 % in other and even as high as 75 %. Overall there is a very high proportion of selection from languages as optionals. This is contrary to the observations in the book “Scaling Techniques What Why and How” that candidates attempting the examination in their mother tongue are at an inherent advantage and thus need to be downscaled. Also the analysis of data of Civil Services(Main) Examination-2007  shows that no parity is achieved between all optional subjects  after applying statistical moderation by Linear Transformation Method as the Mean marks ranges from 210(Physics) to 333(Maithili Literature), Minimum marks ranges from 0 to 376(Arabic literature) , Maximum marks ranges from 258(French literature) to 406 (Zoology).  Thus, the whole process has lost its way in the maze of statistics applied without proper application of mind. Further, as per the disclosure by UPSC in its Counter-Affidavit given in  UPPSC v. Subhash Chandra Dixit & Ors. in SLP (C) No. 23723/2002  in Hon'ble Supreme  Court, the method of sampling used to apply moderation is-10 topmost scorers and 10 selected at random in respect of each examiner. It may be noted that as per the book “Scaling Techniques What Why and How” at page no. 138 at least 25 scripts have to be sampled at random for a system to work properly. While in the present case the random samples are too less. Further, it may be noted that taking 10 topmost samples amounts to selective sampling which is absolutely prohibited in statistics as it introduces a bias in the statistical analysis. Also the method of sampling is faulty as no two methods of sampling can be combined in statistical techniques. Even on these counts moderation and scaling are faulty.

                                  iv.      The petitioner submits that he had given several representations to the Respondent requesting  for the revaluation of answer books and permission to inspect the same and to provide him copies of the same along with instructions given to the respective examiners. However these were rejected. The silence of the Official Gazette and the notification in the present matter demands liberal interpretation and thus balance in favour of the petitioner. That the Respondent has rejected all the representations of the petitioner on the ground that as per practice of the Commission re-evaluation of answer sheets is not allowed. This is completely contrary to the silence of the official gazette on this fact. Also, as is evident from the news report of dainik bhaskar dated 25/07/02 , Union Public Service Commission has not been free from faulty evaluation. The report makes it evident that there has been a policy of re-evaluation by which Sh. Nitin Verma was shifted from 278th rank to 28th rank.

                                    v.      In response to RTI application of petitioner requesting the photocopy of answersheets after  decision of Hon’ble Supreme Court in Civil Appeal No.6454 of 2011 in Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors.  allowing candidates to demand photocopy of their answersheets under RTI act 2005, respondent has denied the same.

                                  vi.      As per Affidavit given by respondent to petitioner dated 27/06/2011 , it is claimed that marks given to candidate by original examiner  are masked/overwritten multiple times during moderation process. This itself is prima-facie evidence of manipulation  and is against the norms of Standard Evaluation System. Even in Board Examinations the marks given by Examiner and Head Examiner are written in separate columns with  different coloured  ink pen.

G.      BECAUSE the Courts below failed to appreciate that in recent past, a number of instances have come to light intimating serious irregularities in the conduct of the examinations. Some of them are explained below:

(a)   In the 1985 Examinations, when the result was declared, it was found that none from Bhopal Center was selected for interview. The candidates from that Center made representations to the UPSC. When the Press took up the matter, the UPSC conducted inquiries and it was found that the answer-sheets of General Studies-II of all 95/97 candidates of that Center were lost and were untraceable. As such, fresh examination was held for these candidates as a result of which, 25 of them were called for interview. Out of these 25, 22, were finally declared successful. This has been accepted by the Respondent before this Hon'ble Tribunal in O.A. No. 816 of 1997.

(b)   In 1985, the C.B.I. registered a case under Sections 420, 464, 471 and 120-B of the I.P.C. as also under the Prevention of Corruption Act against one, Ratipal Saroj and four employees of UPSC, Shri Saroj was selected in Civil Service Examinations, 1985 and was declared as No. 3 in the merit list. A letter was written by certain candidates of Allahabad Centre to the Prime Minister declaring their suspicion and requested him to look into the matter. The C.B.I. inquiries revealed that Shri Saroj joined the UPSC as Section Officer and then was promoted to the post of Deputy Secretary. He was well known to a number of officers in UPSC to whom he had been supplying various articles from time to time. It was alleged that he replaced his answer sheets with the new ones in the UPSC in collusion with the officers. In this examination he got very good marks and stood third in the examination. A copy of news item reported by the Tribune News Service, downloaded from the Internet and other paper cuttings showing irregularities in the recruitment of the respondent is annexed as annexure A-4.

(c)   In 1985, the C.B.I. filed another case under Section 420 and 120-B of the I.P.C. against Sanjay Bhatia and others. The accusation against him was that he produced false Caste certificate showing himself to be a Scheduled Caste and he got himself selected for I.P.S.

(d)   In 2001, one Nitin Verma was initially declared to be on 278th rank. However, after re valuation he was declared to be holding 28th rank. Translated copy with original of Daily "Dainik Bhasker" dated 25.7.2002 showing this fact is filed herewith as annexure A-5.

(e)   Mr. Brijees Sher Arzoo Roll No. 306429 who was reported absent in the paper of Urdu literature I & II as his optional in Civil Services (Main) Examination 2005 contrary to his actual score of 176 out of 300 and 190 out of 300 respectively.

(f)     In 2006, the lines of SC and ST candidates for Civil Service Main Exam. 2005 were deliberately exchanged thereby affecting the entire list. True copy of news report to this effect published in "Hindustan" daily dated 8.6.2006.

(g)   Even in 2006, re-examination of Public Administration paper in Civil (Services Preliminary) Examination, 2006 has been held due to discrepancy in tallying the number of question papers at one of the examination centres. True copy of the news report to this effect containing in "The Hindu" dated 17.5.2006.

(h)   The news report contained in the Indian Express dated 16.7.2006 shows that even before the declaration of result a candidate namely Sunita Dogra claimed herself to be successful in the UPSC which also show flaw in the system.

(i)        There are general allegations against many officers of the UPSC, that they got the question out in order to get their wards and relatives qualified for the Civil Services examination. There are other allegations causing suspicion on account of the fact that the wards of I.A.S. officers are invariable selected in these examinations. The other allegations are that in Rau's Circle (Rau Study Circle for 1985 Examination, a guess paper was given to the students with 11 questions out of which 8 questions appeared in the actual question paper. Further, during the investigations by the C.B.I. into the matter of Saroj and Sanjay Bhatia, two other candidates, namely, Mrindula Sinha and Suresh Chandra were also found to be involved. It has also been reported in the Press that with the manipulations of the UPSC officials, answer-sheets had been substituted in some other cases.

(j)      The irregularity may also be seen in the case of Chittranjan Kumar wherein, when he requested the Respondent for rechecking the papers of Hindi paper II, the Respondent responded vide letter dated 16.6.2009 that the total number of answer-sheets used by him was 2. When he further applied for details of the number and serial No. of the copies, the Respondent replied vide letter dated 22.7.2009 and thereby stated the number of answer-sheets of Hindi paper II was 3. However, in fact that the candidate had written four answer-sheets in Hindi Paper II. The Respondent further did not mention the map submitted with the paper of History Paper-I.

(k)   In case of petitioner, Dr.Prashant Chakkarwar, it was claimed in reply of UPSC dated 8/2/2010  that his answersheets have been double checked/double scrutinised in response to his complaint application dated 30/09/2009 and reminder dated 19/1/2010. Thus, UPSC have double checked/double scrutinised petitioner’s answersheets nearly  80 days after weeding out of answersheets of Civil services(Main) Examination-2008 (Answersheets of Civil Services Main   Examinition -2008 have been destroyed/weeded out by UPSC on  17/11/2009,as claimed by UPSC in its reply to Shri.Manish  Sitaramji Kamatkar dated 9/4/2010).

(l)      Gross violation of Hon’ble Supreme Court judgement in Civil Appeal No. 6454 of 2011 in CENTRAL BOARD OF SECONDARY EDUCATION & Anr. v. Aditya Bandopadhyay & Ors regarding providing candidates photocopy of their answersheets . Malafide intention  of UPSC can be seen in case of Ravi Jindal, a candidate of Civil Services Main Examinition-2005,  wherein  UPSC in letter dated 14/9/2011 said that the said judgement is being studied and futher information will be provided in due course of time and then in letter  dated 24/10/2011 UPSC claimed that as he didn’t approached the CAT , PB, New  Delhi on time ,so his copies are destroyed as per normal retention schedule. But, here they forgot that they had brought the answersheets of candidate in Hon’ble High Court of Delhi  on 3/09/2007 ( that means nearly ten months after the expiry of Normal retiontion Schedule). Malafide intention of UPSC can also be seen in case of Ashish Gupta and Sonia Chahar ,wherein UPSC replied to Ashish Gupta and Sonia Chahar that their answersheets have  been  destroyed, but to  Shi Chittaranjan Kumar ,they replied that his answersheets are intact. (all of them are candidates of Civil Services Main Examination-2008 and party in O.A. No:1252/2009 CAT,PB,New Delhi.). This example itself proves that UPSC thinks itself above all institutions of this Country, including Hon’ble Supreme Court and reflects the adamant attitude of UPSC.

H.      BECAUSE these instances show that the UPSC is not infallible and that the recruitment process of UPSC is not full proof. It is further submitted that where many instances have come to public knowledge, there may be several others which may not come into light due to the closed system of recruitment process and this itself hurts the integrity of the highest agency of recruitment in India.

I.          BECAUSE with respect to the allegations pertaining to method adopted by UPSC for evaluation of answer sheets of candidates pertaining to the Main Examination being arbitrary and illegal, following averments were made in the application. It is respectfully submitted that the said lower marks of the Petitioner may be due to the manner of evaluation applied by the Respondent for evaluation of Answer-Books of Main's Examination which includes the scheme of Moderation as disclosed by the Respondent in several cases including the case of Subash Chandra Dixit v. U.P. Public Service Commission S.L.P. (civil) 23723/2002 before Hon'ble Supreme Court and before Hon'ble Delhi High Court in case of Neel Ratan v. union of India and Ors. CWP No. 1271 of 2006.

J.        BECAUSE this Hon’ble Court in the case of Sanjay Singh v. U.P. Public Service Commission: (2007) 3 SCC 720 petitions under Article 32 of Constitution of India were filed before Supreme Court by the unsuccessful candidates who appeared in the examinations conducted by Uttar Pradesh Public Service Commission (herein after referred to as the "UPPSC") in the year 2003 for recruitment to the posts of Civil Judge (Junior Division). It was held by this Hon’ble Court that the material placed does not disclose that the Commission or its expert committee have kept key factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another committee of experts.

K.       BECAUSE  the Courts below erred in holding that the UPSC had stated on oath before Supreme Court in Sanjay Singh's case (supra) that it is not applying the method of scaling of marks in evaluating answer sheets of the candidates pertaining to Civil Services (Main) Examination. A perusal of the report relied upon by the petitioner merely brings out that linear scaling of marks is one of the methods of statistical moderation and is not the same as linear scaling as alleged by the petitioner. It may be highlighted that no argument can be advanced that scaling, ipso facto, results in imperfection. Scaling as a concept has various hues for example, linear scaling and equi-percentile scaling. Each has its own indices and formula. In a given situation, the desired result may fail but only at the extremities of the spectrum (as was discovered by Supreme Court in Sanjay Singh's case (supra). Thus, without showing to the court the scaling formula applied and indices used by teachers in UK to achieve common standards of assessment of marks, the deficiency found in applying scaling in UK cannot be a ground to question moderation, applying linear scaling by UPSC.

L.       BECAUSE the Courts below erred in holding that UPSC has been continuously conducting Civil Services Examination every year starting from 1949 to till date. The petitioner had pointed out ten incidents of detection of irregularities in Civil Services Examination conducted by UPSC over the past "seven decades". A few stray incidents of irregularities detected in the Civil Services Examination conducted in the past seven decades do not vitiate the sanctity of Civil Services Examination. No materials whatsoever has been placed on record by the petitioner in the present case suggesting that there were irregularities in the Civil Services Examinations conducted by UPSC in the year 2007-2009.

M.     BECAUSE the Courts below erred in holding that the affected candidates are not before the Court and in their absence, their appointments cannot be set aside. It was further held that the petitioner approached the Tribunal after a period of more than one year from the date of declaration of results in respect of Civil Services Examinations in question. Till the time the petitioner in question approached the Tribunal, the selections and appointments in pursuance of declaration of results had already been made. The petitioner in question did not implead as respondents the persons who already stood appointed and were likely to be adversely affected by the success of the petitioner before the Tribunal. It does not stand to reason to upset the appointments made much prior to the date of filing of applications by the petitioner in question before the Tribunal. The delay in approaching the Tribunal by the petitioner in question was most fatal to the case set up by them before the Tribunal.

N.      BECAUSE it is further submitted as per own admission of the respondent in case of Neel Ratan v. union of India CWP No. 1271 of 2006, statistical moderation is done by liner transformation of marks. It is respectfully submitted though the Respondent has not clarified anywhere what is liner transformation and how it is different from linear scaling, the Applicant has tried to find out the materials on the concerned issue and have been able to find out at least two reports which suggest that the said linear transformation of marks is same as liner scaling, except the name.

O.      BECAUSE it is further submitted that in the case of Subash Chandra Dixit v. U.P. Public Service Commission S.L.P. (civil) 23723/2002 the Respondent Commission had stated that they follow equi-percentile method of scaling and not linear scaling. However, the Respondent Commission has in the case of Neel Ratan has stated in their Additional Affidavit dated 10.3.2006 that they do statistical moderation by Linear transformation in subjective papers of Civil Services Examination. Meanwhile, as the above reports show, the Linear Transformation is the Linear Scaling only, and therefore, the Respondent Commission is applying the same method of Linear Scaling in the present case which it has been found to be improper by Hon'ble Supreme Court in Sanjay Singh and Anr. v. UPSC: (2007) 2 Scale 1.

P.       The Hon’ble High Court has failed to appreciate the plea of Cousel for Petitioner  to tag the matter alongwith batch of similar pending matters {WP(C) 5743/2007, WP(C) 7183/2009,  WP(C)7328/2009, WP(C)7381/2009, WP(C)8179/2009, WP(C)11187/2009 } in Regular list , denying the plea ,after brief argument by the Cousel the matter was reserved for orders without issuing notice to the Respondent on 28.9.2010.

6.      GROUNDS FOR INTERIM RELIEF

That if the operation of the impugned order is not stayed in favour of the petitioner, irreparable loss and hardship would be caused to the petitioner.

7.  MAIN PRAYER

It is, therefore, respectfully prayed that the special leave petition against the impugned orders dated 05.10.2010 in WP (C) No. 6586/2010 and dated 29.07.2011 in RP Nos. 490/2010 passed by the Hon’ble High Court of Judicature at New Delhi.  

8.      INTERIM RELIEF

It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to stay the operation of the impugned orders, till the disposal of the present appeal.

DRAWN BY:                                                                             FILED BY

RAJ KAMAL                                                                            AMIT SHARMA

        (ADVOCATE FOR PETITIONER)

DRAWN ON:                                                                          FILED ON