Rajasthan High Court - Jaipur
Vikram Singh Gurjar vs R P S C Ajmer on 7 September, 2011
Author: Mn Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. SB Civil Writ Petition No.3741/2011 Vikram Singh Gurjar Vs Rajasthan Public Service Commission 2. SB Civil Writ Petition No.10312/2010 Narendra Singh Shekhawat Vs State of Rajasthan & Ors. 3. SB Civil Writ Petition No.10359/2010 Sameer Deshpande Vs Raj. Public Service Commission & Anr. 4. SB Civil Writ Petition No.4292/2011 Chandra Mohan Meena & Ors. Vs Rajasthan Public Service Commission & Ors. 5. SB Civil Writ Petition No.10874/2010 Chandra Prakash Verma & Ors. Vs Rajasthan Public Service Commission & Ors. 6. SB Civil Writ Petition No.5272/2011 Amit Kumar Meena Vs State of Rajasthan & Ors. 7.SB Civil Writ Petition No.6218/2010 Rajesh Agri Vs State of Rajasthan & Ors. 8. SB Civil Writ Petition No.6555/2010 Arun Kumar & Ors. Vs Raj Public Service Commission & Ors. 9. SB Civil Writ Petition No.7068/2010 Munna Lal Meena Vs Rajasthan Public Service Commission 10. SB Civil Writ Petition No.7512/2010 Niranjan Meena Vs Rajasthan Public Service Commission 11. SB Civil Writ Petition No.8829/2010 Gulshan & Ors. Vs Rajasthan Public Service Commission 12.SB Civil Writ Petition No.9012/2010 Manoj Kumar Meena Vs Rajasthan Public Service Commission 13. SB Civil Writ Petition No.10175/2010 Pranav Kumar & Anr. Vs Rajasthan Public Service Commission 14. SB Civil Writ Petition No.10790/2010 Rakesh Kumar Narnolia & Ors Vs Raj Public Service Commission 15. SB Civil Writ Petition No.10875/2010 Durgesh Nandini Bairwa Vs Rajasthan Public Service Commission & Anr. 16.SB Civil Writ Petition No.10876/2010 Om Prakash Bansal & Ors. Vs Rajasthan Public Service Commission & Anr. 17. SB Civil Writ Petition No.10877/2010 Kalu Ram & Ors. Vs Raj. Public Service Commission & Ors. 18. SB Civil Writ Petition No.10878/2010 Mahendra Kumar & Ors. Vs Rajasthan Public Service Commission & Ors. 19. SB Civil Writ Petition No.10879/2010 Manohar Lal Meena & Ors. Vs Rajasthan Public Service Commission & Ors. 20. SB Civil Writ Petition No.11086/2010 Brij Mohan Bairwa Vs Raj. Public Service Commission & Ors. 21. SB Civil Writ Petition No.11087/2010 Harish Chand Nagarwal Vs Raj.Public Service Comm. & Ors. 22. SB Civil Writ Petition No.11088/2010 Chandra Bhan Singh Meena Vs Rajasthan Public Service Commission & Ors. 23. SB Civil Writ Petition No.11089/2010 Shiv Karan Shivota Vs Raj. Public Service Commission & Ors. 24. SB Civil Writ Petition No.12883/2010 Samandar Singh Vs State of Rajasthan & Ors. 25. SB Civil Writ Petition No.412/2011 Jyoti Sharma & Ors. Vs Rajasthan Public Service Commission 26. SB Civil Writ Petition No.3835/2011 Yogendra Vs Rajasthan Public Service Commission 27. SB Civil Writ Petition No.3836/2011 Ankur Singhal Vs Rajasthan Public Service Commission 28. SB Civil Writ Petition No.3909/2011 Samay Singh Vs Rajasthan Public Service Commission 29. SB Civil Writ Petition No.3949/2011 Mahendra Kumar Meena & Anr. Vs State of Raj. & Ors. 30. SB Civil Writ Petition No.4003/2011 Hemant Verma Vs Rajasthan Public Service Commission 31. SB Civil Writ Petition No.4004/2011 Ram Niwas Raigar Vs Rajasthan Public Service Commission 32. SB Civil Writ Petition No.4005/2011 Dinesh Kumar Meena & Ors. Vs Raj. Public Service Commission 33. SB Civil Writ Petition No.4017/2011 Niranjan Singh Vs Rajasthan Public Service Commission & Ors. 34. SB Civil Writ Petition No.4044/2011 Prem Das Nayak Vs Rajasthan Public Service Commission & Ors. 35. SB Civil Writ Petition No.4045/2011 Ramesh Chand Meena & Ors. Vs Raj. Public Service Commission 36. SB Civil Writ Petition No.4046/2011 Ajay Kishan Vs Rajasthan Public Service Commission & Ors. 37. SB Civil Writ Petition No.4119/2011 Kamlesh Kumar & Anr. Vs Rajasthan Public Service Commission 38. SB Civil Writ Petition No.4166/2011 Manoj Kumar Tanan Vs Rajasthan Public Service Commission 39. SB Civil Writ Petition No.4265/2011 Rajendra Singh Vs Rajasthan Public Service Commission 40. SB Civil Writ Petition No.4275/2011 Anil Kumar Kalodia & Anr. Vs Raj. Public Service Commission 41. SB Civil Writ Petition No.4288/2011 Nagendra Kumar Mahawar & Ors. Vs RPSC & Ors. 42. SB Civil Writ Petition No.4289/2011 Vinod Kumar Vs Rajasthan Public Service Commission & Ors. 43. SB Civil Writ Petition No.4290/2011 Vijay Pal Vs Rajasthan Public Service Commission & Ors. 44. SB Civil Writ Petition No.4291/2011 Pankaj Kumar Meena Vs Raj. Public Service Commission & Ors. 45. SB Civil Writ Petition No.4442/2011 Deepak Mathur Vs Rajasthan Public Service Commission 46. SB Civil Writ Petition No.5251/2011 Prahlad Meena Vs State of Rajasthan & Ors. 47. SB Civil Writ Petition No.5269/2011 Avinash Kumar Jha & Ors. Vs State of Rajasthan & Ors. 48. SB Civil Writ Petition No.11247/2011 Bhawani Singh Meena Vs Rajasthan Public Service Commission 49. SB Civil Writ Petition No.11348/2011 Dhara Singh Pooneta & Ors. Vs Raj.Public Service Commission Date of Order - 7th September, 2011 PRESENT HON'BLE MR. JUSTICE M.N. BHANDARI Mr Bipin Gupta Mr R.P. Saini Mr Brijesh Bhardwaj Mr Peush Nag Mr NS Yadav Mr RD Meena Mr Pradeep Mathur Mr AK Bansal Mr Umesh Shama Mr S Balwada for petitioners Mr.S.N. Kumawat for RPSC BY THE COURT:
REPORTABLE This bunch of writ petitions involve common questions of law thus were heard together and decided by this common order.
The Rajasthan Public Service Commission (for short 'the Commission') issued advertisement on 7.8.2008. It was for selection to the post of Assistant Engineer (Civil/Electrical) in Public Works Department, Irrigation Department and Panchayati Raj Department of the State. It was pursuant to the Rajasthan State Engineering Services (Combined Competitive by Direct Recruitment) Rules, 1991 (for short 'the Rules of 1991').
All the petitioners herein applied for the selection and appeared in the written examination. Result of written examination was declared by the Commission and, on receipt of mark sheet, petitioners realized application of scaling system thereby gross marks awarded to them were reduced. Accordingly, they filed these writ petitions. Earlier to filing of these writ petitions before the Jaipur Bench, a writ petition was filed by Mool Chand Tanwar & ors Vs RPSC & anr (SB Civil Writ Petition No.4984/2010) at Principal Seat, Jodhpur. Therein, interim order was passed whereby petitioners were provisionally allowed to appear in the interview subject to final outcome of the writ petition. Similar orders were passed in these writ petitions also. Accordingly, all the petitioners appeared in the interview.
Learned counsel for petitioners submit that combined competitive examination was with same set of subject papers thus scaling of marks was improper. It resulted in reduction of marks of meritorious candidates and, at the same time, increase of marks of those who were not meritorious. This is more so when on account of scaling, few petitioners could not secure minimum required marks for interview though their raw marks are sufficient to make them eligible for interview thus application of scaling is detrimental to the rights of the petitioners. It is urged that if there was examiner variability then also method of scaling should not have been applied in the light of the judgment of the Hon'ble Apex Court in the case of Sanjay Singh & anr vs UP Public Service Commission, Allahabad & anr reported in JT 2007 (2) SC 534. In the aforesaid judgment, method of moderation of marks was held to be proper, wherein subject papers are common but variation exists on account of large number of examiners. The respondent-Commission should have thus applied method of moderation instead of scaling to check examiner variability, if any.
It is submitted that if the reply to the writ petition is looked into, then number of candidates appeared in the selection are not very large so as the examiners, thereby method of moderation should have been applied instead of scaling system. This is more so when for the subject of Mechanical Engineering-I, 85 students appeared and only one examiner checked the answer sheets, yet scaling system was applied for the said subject also.
In the similar manner, in the paper of Civil Engineering-I, there were only 3 examiners with 1 Head Examiner, yet scaling system has been applied instead of moderation, thus scaling system has been applied in a cyclostyle manner. In fact, maximum examiners were 12 only for the subject of Hindi and, in that case, application of moderation could have been proper answer to check examiner variability. Therefore only, respondents failed to justify their action for application of scaling system. Same controversy came up for consideration before this court in regard to selection for Rajasthan Judicial Services, wherein also, candidates appeared in common papers. Therein, application of scaling was held to be invalid in the case of Sharwan Kumar Vs RPSC & ors, DB Civil Writ Petition No.825/2010, decided on 10.5.2010 at Principal Seat, Jodhpur along with 10 other writ petitions. The case in hand is similar to that decided in the case of Sharwan Kumar (supra) thus aforesaid judgment should be made applicable herein also.
Same view was taken by this court even in the case of Dhanpat Mali Vs RPSC & ors, decided vide order dated 27.10.2009. Pattern of selection for Judicial Services and the Engineering Services are not at variance.
In the light of the aforesaid, respondent-Commission should be directed to hold interview based on raw marks awarded to the petitioners or, in the alternative, copies of written examination should be ordered to be rechecked by applying method of moderation.
In few cases, a further prayer has been made for relaxation in minimum marks to the reserve category candidates to qualify for the interview. It is urged that rules, as were existing in the year 1991, underwent a change in view of the amendment in the year 1999. By virtue of the amendment in the Rules vide Notification dated 31.5.1999 there exists no provision for minimum marks in the written examination to qualify for interview, as rule 14 then existing, has completely been amended. In the light of the aforesaid also, candidates belonging to reserve category should not have been debarred to appear for interview for want of minimum marks in written examination. The Commission should have otherwise fixed lower cut off marks for the reserve category candidates to accommodate then in interview, so the vacancies meant for reserve category candidates are filled in completely. The action of the Commission has been challenged accordingly on the aforesaid ground also.
It is lastly contended that few vacancies meant for reserve category candidates were filled up from general category candidates though after the Constitutional amendment and amendment in the Service Rules, it should have been entirely carried forward without filling up by the general category candidates. This is more so when few posts out of many carried forward without filling it from general category candidates. Hence, action of the respondents becomes discriminatory.
In view of submissions made above, it is prayed that respondents should evaluate copies of written examination by applying system of moderation, if at all, there exists examiner variability and based on the aforesaid, eligible candidates should be called for interview and looking to the size of the vacancies meant for different category, without requiring them to obtained minimum qualifying marks to the extent of 35% in each paper and 40% marks in aggregate.
Per contra, learned counsel appearing for the respondents, submits that pursuant to the advertisement, selection was conducted by the respondents strictly as per amended rules. System of scaling was applied looking to the difference of marks awarded by the examiners. Few examiners were found to be liberal and others little strict in award of marks. The Commission accordingly took a decision to apply scaling to avoid examiner variability affecting the result. Details of the candidates appeared in different subjects have been given in para 8 of the reply along with the details of the Head Examiners and the Examiners. Scaling has been applied where more than one examiner had checked the copies. Rules of 1991 do not prohibit application of scaling thus the Commission, in its discretion, applied method of scaling after taking into consideration as to out of the two systems i.e. moderation and scaling, which should be applied in this case.
It is contended that system of moderation was not found practicable, rather, it was taken to be time consuming hence, mathematical formula of scaling was applied so that all the candidates may be scaled to a similar level. This is looking to the fact that there were 4630 answer sheets for the said selection. The details of which have been given separately in the form of a statement. Therein, it has been focused as to what was the variability between examiners in awarding marks. Looking to the aforesaid circumstances, there is no illegality in application of scaling. This is more so when in the case of Sanjay Singh (supra), Hon'ble Apex Court has not restrained the Commission to apply scaling in case of examiner variability, rather, the aforesaid case was decided keeping in mind set of rules applicable for recruitment of Judicial Officers. In the case of Jai Singh & ors Vs State of Rajasthan & anr, DB Civil Writ Petition No.12924/2009, decided by the Division Bench of this court on 21.12.2010, held that scaling can be applied even to check examiner variability. The aforesaid judgment was pertaining to combined competitive examination for State and Subordinate Services wherein one formula of scaling was applied at two levels i.e. to check examiner variability and then subject variability because in the combined competitive examination for State and Subordinate Services, one can opt for different papers/subjects.
In view of judgment in the case of Jai Singh (supra), there remains no scope for the petitioners to challenge the action of the respondent Commission herein and, otherwise also, this court should be slow to interfere in the matter of recruitment where selection is made with the help of expert's opinion.
Now comes the issue as to whether a candidate can be denied permission for appearance in the interview in absence of obtaining 35% marks in each subject and 40% marks in aggregate even after amendment vide Notification dated 13.5.1999. It is submitted that rule 14 so amended provides for requirement of minimum passing marks in each subject and also in aggregate. Accordingly, one cannot claim appearance in interview without required qualifying marks. No lesser marks have been provided in the Rules for reserved category candidates thus they can also seek appearance in the interview without obtaining required passing marks. This is more so when amended rule is not under challenge and, otherwise, there is no compulsion on the State Government to give relaxatioin or provide less passing marks for reserve category candidates. The judgment of the Hon'ble Apex Court in the case of Andhra Pradesh Public Service Commission Vs Baloji Badhavath & ors. reported in (2009) 5 SCC 1 gives complete answer to the aforesaid. This is after considering Article 335 of the Constitution, as amended. Same issue was earlier decided by the Hon'ble Apex Court in the case of Pitta Naveen Kumar & ors Vs Raja Narasaiah Zangiti & ors 2006 (10) SCC 261. Referring to the aforesaid judgment, it is submitted that eligibility condition cannot be relaxed in absence of provision thereof in the Rules and, otherwise, it cannot be granted by the court but can be by way of administrative action. It is thus submitted that no reserve category candidate is entitled for interview in absence of required passing marks as provided under the Rules so amended vide Notification dated 31.5.1999. Schedule under rule 14 of the Rules of 1999 provides minimum 35% marks in individual paper and 40% marks in aggregate to qualify for interview.
Coming to the issue of back log, it is submitted that certain vacancies existing prior to Constitutional amendment and consequential amendment in the Service Rules were taken separately. This was in view of the fact that prior to amendment in the Article 16(4) of the Constitution of India, the vacancies meant for reserve category were required to be carried forward for three years with an arrangement to fill up those vacancies from general category at the same time. Accordingly, those vacancies, which were existing prior to amendment in the Constitution and the Rules were filled up from general category with an arrangement of carried forward.
So far as vacancies arose after amendment in the Constitution and the Rules are concerned, those were separately identified for reserve category candidates and carry forwarded without filling from general category candidates. The action of the Commission in regard to the different treatment to the backlog vacancies is on that count and not for any other reason. In fact, the Commission was cautious enough to take their action strictly as per the rules applicable to the respective vacancies, hence, no case is made out for calling for interference in the selection process on that count also. Prayer was made accordingly to dismiss the writ petitions.
I have considered the submissions of learned counsel for parties and scanned the matter carefully besides the judgments cited at the Bar.
The first issue for consideration is as to whether method of scaling has rightly been applied by the Commission for a selection having common subject papers, may be, with the examiner variability?
A detailed reply to the writ petitions has been filed with a statement of the candidates appeared for different post subjects and for whom scaling was applied. The table as given in para 8 of the reply is thus quoted hereunder for ready reference -
Sr No. Subject No. of candidates appeared No. of Head examiners No. of examiners
1. Hindi 1168 1 12
2. Social Aspect 1164 1 10
3. Civil Engineer-I 1014 1 3
4. Civil Engineer-II 1004 1 11
5. Mech. Engineer-I 85 1 1 Perusal of the table shows that for 5 post subjects, method of scaling has been applied leaving 3 other subjects, wherein, method of scaling was not applied by the Commission. The table of which has not been given in the reply but subsequently given in the form of statement during course of the arguments thus quoted hereinbelow to show as to in which subject scaling has not been applied-
Sr No. Subject No. of candidates appeared No. of Head examiners No. of examiners
1. Mech. Engineer-II 85 0 1
2. Electrical Engineer-I 55 0 1
3. Electrical Engineer-II 55 0 1 Perusal of the two tables quoted above reveals that for the paper of Mechanical Engineering-I, 85 candidates appeared and copies were examined by only one examiner, yet, method of scaling has been applied by the Commission. This is more so when there exists neither subject variability nor examiner variability for the aforesaid paper because it has not been disputed by the Commission that selection was with common subject papers for the respective posts i.e. in the Electrical and Civil branches separately.
In the paper of Mechanical Engineering-II, 85 candidates appeared and therein scaling has not been applied. Learned counsel for respondents could not justify action of the respondent-Commission in this regard when 85 candidates appeared for the paper of Mechanical Engineering-I and II but for one paper scaling has been applied, whereas, for other paper it has not been applied.
The method of scaling was thus applied for the paper of Hindi, Social Aspects of Engineering, Civil Engineering-I and II and Mechanical Engineering-I papers. Para 2 of the said statement is quoted hereunder for ready reference -
?? ??????? ??? ??? ???? ??? ?? ?? ???? ???????? ?? ????? ????????? ?????????? ?? ?? ??? - ?????, ???? ???????? ??? ???????????/????? ??????????? I - II/???????? - I ??? ???????? ?? ?? ??.
The fact further remains that for the paper of Civil Engineering-I there were only 3 examiners and therein 1014 candidates appeared. It could not be shown as to why method of moderation was not applied more so when scaling has not been held to be a foolproof mechanism to check examiner variability. In fact, moderation is held to be a better mechanism to check examiner variability.
In the light of the aforesaid facts, it seems that method of scaling has been applied by the Commission in a mechanical manner because even for different papers, if total examiners are taken note of along with the number of candidates, then it is not very large. The respondent Commission however tried to justify their action by giving details regarding examiner variability in award of marks but then scaling cannot be said to be foolproof system to keep a candidate at par with others after removing examiner variability. In fact, for the aforesaid, moderation is a better mechanism. In view of the judgment of the Hon'ble Apex Court in the case of Sanjay Singh (supra), system of scaling has to be applied with caution after assessing as to whether such situation exists. The facts relevant to the application of scaling have been dealt with in para 36 of the said judgment, which are quoted thus -
36. We may now summarize the position regarding scaling thus :
(i) Only certain situations warrant adoption of scaling techniques.
(ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk-dove' effect (strict/liberal valuation).
The material placed does not disclose that the Commission or its expert committee have kept these 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. Till such new system is in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications.
In the present matter, there is nothing on record to show that the Commission or its experts kept in mind the aforesaid facts while applying method of scaling. It is necessary to indicate that method of scaling cannot be applied without taking various factors in mind as indicated above. The Hon'ble Apex Court took cognizance of the fact that variation of one mark may debar a candidate to be selected. In the light of the aforesaid and facts of this case, the respondent Commission should have taken a cautious decision as to whether method of scaling should have been adopted or not.
This is more so when neither Rules of 1991 provide for application of scaling nor method of recruitment, as given under rule 14 and schedule II of the Rules as amended, in the year 1999. In the facts situation aforesaid also, these cases get similarity to the judgment rendered by the Supreme Court in the case of Sanjay Singh & anr Vs UP Public Service Commission, Allahabad & anr reported in JT 2007 (2) SC 534, and by this court in the cases of Sharwan Kumar Vs RPSC & ors, DB Civil Writ Petition No.825/2010, decided on 10.5.2010 and Dhanpat Mali Versus RPSC & ors, decided by this court on 27.10.2009 though all the aforesaid cases were pertaining to the recruitment to the Judicial Service, however, the court should be cautious enough to apply one proposition of law on similar set of cases.
To deal with the aforesaid issue, it would be relevant to quote certain paras of the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) as the application of scaling and moderation has been separately considered with elaboration as to what is the difference between the two methods. Paras 23, 24 and 26 of the judgment are quoted thus -
23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer- scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk- Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows :
(i) The paper-setter of the subject normally acts as the Head Examiner for the subject. He is selected from amongst senior academicians/ scholars/ senior civil servants/Judges. Where the case of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation.
(ii) To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks etc. may also be prepared in respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggest upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner.
(v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner, for which it is not feasible to have any standard moderation, the answer scripts valued by such examiner are revalued either by the Head Examiner or any other Examiner who is found to have followed the agreed norms.
(vi)Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the Examiners. In such a situation, one more level of Examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners, in turn, is checked by a Chief Examiner to ensure proper results.
The above procedure of 'moderation' would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity.
24. In the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that a mark of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate to an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. This may happens when for example, in a Civil Service examination, where Physics and Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriate to a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalized equi- percentile method are some of the recognized methods for scaling.
26. The Union Public Service Commission ('UPSC' for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in civil service preliminary examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer scripts are evaluated by computerized/ scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted to. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/ conventional type question papers in regard to same subject; and that scaling should be resorted only where a common merit list has to be prepared in regard to candidates who have taken examination of different subjects, in pursuance of an option given to them.
Paras quoted above show that where merit list is to be prepared in regard to candidates undertaken examination in different subjects, then scaling system can be applied whereas, moderation is appropriate method to bring about uniformity in evaluation where several examiners evaluate answer scripts by descriptive and conventional type question papers in regard to same subject.
In the light of the paras quoted above, the Commission was required to notice as to when method of moderation should be applied and as to when method of scaling. In the cases in hand, even for one examiner for the subject of Mechanical Engineering-I, scaling has been applied, whereas, there is neither subject nor examiner variability therein. Thus, action of the Commission cannot be appreciated entirely for application of method of scaling. In the case of Sanjay Singh (supra) even earlier judgments were considered. In the case of UP Public Service Commission Versus Subhash Chandra Dixit reported in JT 2003 (8) SC 531 and, in para 37, it was held that scaling system adopted by the Commission leads to irrational result and does not offer a solution for examiner variability arising from strict/ liberal examiners. Thus, two grounds considered by the Hon'ble Apex Court in an earlier judgment in the case of Subhash Chandra Dixit are not valid. Relevant part of para 37 of Sanjay Singh's case (supra) is quoted thus -
37. .....We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.
Part of the para quoted above shows that judgment in the case of Subhash Chandra Dixit (supra) was not approved. In para 38 of the same judgment, earlier judgments on the issue were considered and distinguished, as it was basically related to moderation and not to the scaling system though, at certain places, the word 'scaling' was used but then not to be confused to apply those judgments while considering the matter of scaling. Para 38 of the said judgment is also quoted thus -
38. Learned counsel for the Commission contended that scaling has been accepted as a standard method of evaluation in the following decisions and therefore it should be approved :-
(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR 157], upheld by this Court by order dated 11.3.1987 in SLP (C) No. 14000/1986.
(ii) Mahesh Kumar Khandelwal vs. State of Rajasthan [1994 (1) Raj.LR 533] upheld by this Court by order dated 22.1.1996 in SLP(c) No. 15682-15684 of 1994.
(iii) K. Channegowda vs. Karnataka Public Service Commission [2005(12) SCC 688).
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.
Perusal of the para quoted above shows that judgment in the case of Kamlesh Haribhai Goradia Versus Union of India , Mahesh Kumar Khandelwal and K Channegowda, referred therein, were in reference to moderation and not scaling though reference to the scaling as one of the method to achieve common standard of assessment exist therein. The aforesaid para is even relevant for the reason that while deciding the matter in the case of Jai Singh (supra), the judgments in the case of Mahesh Kumar Khandelwal, and K Channegowda (supra) have been referred though facts of the judgment in the case of Jai Singh are little different than applicable to the present matter.
If the facts of present case are looked into in the light of the judgment in the case of Sanjay Singh (supra) then respondent Commission could not justify as to why method of moderation has not been applied instead of method of scaling. The only excuse taken is in reference to number of candidates appeared for different post subjects but one cannot loose sight of the fact that for different five papers for which scaling has been applied, number of Head Examiner was one to control examiners which are maximum 12 in the subject of Hindi, whereas, for Civil Engineering-I only 3 examiners were there and for Mechanical Engineering-I, only one examiner.
Looking to the number of Head Examiners for different subjects with number of Examiners, it was not difficult for the Commission to apply moderation where examiner variability can be checked more appropriately than applying formula of scaling. There exist absolutely no justification to apply system of scaling for the paper of Mechanical Engineering-I because very basis to apply formula of scaling to avoid examiner variability does not exists therein having 1 examiner only on 85 candidates appeared therein.
In the background aforesaid, application of method of scaling is not after taking precautions as laid down by the Hon'ble Apex Court in the case of Sanjay Singh (supra) but applied in a mechanical manner thus action of the respondent Commission cannot be held to be justified to apply scaling though their intentions may be good. The fact, however, remains that result of written examination has already been declared followed by the interview wherein petitioners have also appeared pursuant to the interim directions.
In the light of the aforesaid, it would not be proper to unsettle the entire selection but issue needs to be ended with the same direction as was given by the Hon'ble Apex Court in the case of Sanjay Singh(supra). Paras 41 and 42 of the judgment in the case of Sanjay Singh (supra) are quoted thus -
41. The petitioners have requested that their petitions should be treated as being in public interest and the entire selection process in regard to Civil Judge (Junior Division) Examination, 2003 should be set aside. We are unable to accept the said contention. What has been made out is certain inherent defects of a particular scaling system when applied to the selection process of the Civil Judges (Junior Division) where the problem is one of examiner variability (strict/liberal examiners). Neither mala fides nor any other irregularities in the process of selection is made out. The Commission has acted bona fide in proceeding with the selection and neither the High Court nor the State Government had any grievance in regard to selections. In fact, the scaling system applied had the seal of approval of this Court in regard to the previous selection in S.C. Dixit (supra). The selected candidates have also been appointed and functioning as Judicial Officers. Further as noticed above, the scaling system adopted by the Commission has led to irrational and arbitrary results only in cases falling at the ends of the spectrum, and by and large did not affect the major portion of the selection. We, therefore, direct that our decision holding that the scaling system adopted by the Commission is unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination.
42. However, in so far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case :
a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) No. 165/2005 belonging to the Category 'BC' have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. [C] No.165/2005 is less than the marks of the selected candidates).
b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. (For example, we find that petitioner Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates [347, 337, 336, 383 and 335] under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment). This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31st August, 2005.
(emphasis supplied).
In the light of the paras quoted above, it is held that the Commission, in future will take a proper decision for application of scaling method for those selections where common papers exist. Before taking any decision to make their result rationale, possibility of application of moderation system should also be looked into. Therefore, judgment herein would be applied prospectively without unsettling the selection already made as given in paras 41 and 42 of the judgment in the case of Sanjay Singh (supra) and quoted above. Thus candidature of the petitioners would however be evaluated as per the direction given by the Hon'ble Apex Court in para 42 quote above.
In the light of the discussion made above, it is not necessary to discuss the judgments in the cases of Sharvan Kumar and Dhanpat Mali (supra) but it would be necessary to discuss the judgment in the case of Jai Singh (supra).
The case of Jai Singh was in respect of Combined Competitive Examination for State & Subordinate Service. Therein, subject as well as examiner variability was existing along with large number of candidates. Looking to the aforesaid, application of one method of scaling was held to be justified. Since scaling was applied therein to avoid subject variability, hence with the same method, examiner variability was also checked. This is more so when number of subjects and examiners were large therein. In the aforesaid case, application of method of scaling for examiner variability was thus approved. However, if the facts of these cases are looked into, then they are quite distinguishable, inasmuch as here there exist no subject variability and, otherwise, the Commission could not justify application of scaling for the paper of Mechanical Engineering-I, where total candidates were 85 with 1 Examiner thus question of examiner variability does not exists, still method of scaling was applied therein. This is more so when 85 candidates even appeared for the paper of Mechanical Engineering-II but therein with 1 examiner, scaling therein was not applied. On the aforesaid facts position, action of the Commission becomes discriminatory and distinguishable from the judgment as rendered by the Division Bench of this court in the case of Jai Singh (supra). Herein, the Commission could not justify scaling entirely whereas, such justification could be attached for Combined Competitive Examination for State and Subordinate Service. In the aforesaid background, ratio propounded by the Division Bench of this court in the case of Sharvan Kumar and Dhanpat Mali (supra) can be made applicable but, looking to the good intentions of the Commission, I have cautiously not unsettling the selection already made but giving protection to the petitioners with a direction to the respondent Commission to apply method of scaling with caution, that too, after considering as to why moderation cannot be applied when it is a case of examiner variability only.
In view of aforesaid discussion, the first issue raised is concluded with the aforesaid finding and direction.
Now comes the question as to whether reserve category candidates need to be given relaxation by fixing lower percentage of marks to make them qualify for appearance in interview in the light of Article 335 of the Constitution of India.
Before averting to the submissions made by learned counsel for petitioners, it would be gainful to quote amended rule 14 of the Rajasthan State Engineering Service (Direct Recruitment by Combined Competitive Examination) Rules, 1991 and part of Schedule II relevant to these cases, which are quoted thus -
14. Scheme of Examination, Personality & Viva-voce Test:- The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-II. The marks obtained in the Preliminary Examination by the candidate, who are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (Categorywise) to be filled in the year in the various Services and Posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination. Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthan Culture. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate.
Schedule II
2. PERSONALITY AND VIVA-VOCE EXAMINATION (see rule 14):
(i) Candidates who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the commission in their discretion shall be summoned by them for interview.
Provided that no candidate who fails to obtain a minimum of 35% of marks in each of the two compulsory papers and a minimum of 40% marks in the aggregate shall be called by the Commission for interview which carries 72 marks.
(ii) The Commission shall award marks to each candidate interviewed by them. In interviewing the candidates besides awarding marks in respect of character, personality, address and physique, marks shall also be awarded for the candidate's knowledge of Rajasthan Culture. The marks so awarded shall be added to the marks obtained in the written test of the Main Examination by each such candidate.
Perusal of the rule quoted above shows that rule 14 provides for scheme of examination and, therein, reference of Schedule-II has been given. Schedule II provides details of Preliminary Examination and Main Examination with requirement of minimum passing marks to become eligible for interview. The validity of the Rules is not under challenge thus petitioners are not entitled to seek benefit contrary to the statutory provision. In fact, this court cannot issue directions contrary to the statutory provisions. Thus, the issue that no minimum marks have been provided to qualify for the interview, in view of the Notification dated 31.5.1999, is not tenable as none of the petitioners could focus on Schedule-II, which is part of the rules and mentioned in amended rule 14 itself. In fact, they compared earlier rule 14 with the amended rules without noticing the Schedule appended thereto. Thus, it is not correct to state that rules does not provide minimum required marks for appearance in interview.
The issue now comes as to whether reserve category candidates should be given relaxation by lowering the minimum marks for their appearance in interview?
Reference to the Constitutional amendment in Article 335 has been made by the learned counsel for petitioners. Perusal of the proviso to Article 335 makes it clear that relaxation in qualifying marks in the examination or lowering the standard of evaluation for reserve category candidate is provided in case of promotion for SC/ST candidates, however, proviso therein does not mandate for grant of such benefit but is only enabling provision.
The complete answer to the aforesaid issue otherwise exists in the judgment in the case of UP Public Service Commission (supra). Therein, it has been held that the benefit as prayed for, cannot be claimed as a matter of right. Hence, prayer made by the petitioner in reference to Article 335 of the Constitution of India cannot be accepted as Article 335 is enabling provision only and therefore respective government is at liberty to apply such provision but this court cannot compel them to apply it. This is more so when now emphasis has been made for maintaining effective administration, thus compromise in merit for filling up the post by direct recruitment may affect it otherwise. This has also been held in the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of M. Nagaraj & Ors. Vs. Union Of India & Ors. Decided on 18 March, 2010 in Civil Original Jurisdiction Writ Petition (Civil) No.61/2002.
Same view was reiterated by the Hon'ble Supreme Court while dealing with the case of Pitta Naveen Kumar & ors versus Raja Narsaiah Zangiti & ors (supra) holding that relaxation in eligibility condition cannot be granted in absence of provision thereof in the Rules.
In view of aforesaid discussion, judgment in the case of State of Orissa Vs Mohd Yunus & ors reported in 1994 Supp(2) SCC 55 cannot be applied. This is more so when Article 16 of the Constitution of India prohibits discrimination on the ground of caste. Same is the position in regard to the judgment in the case of Ram Bhagat Singh & Anr Vs State of Haryana & anr reported in 1991(3) SLR 15. In both the judgments, there was no direction from the court to lower down the qualifying marks for the reserve category candidates but a direction was to the Government to consider aforesaid aspect.
Subsequent to the aforesaid judgment, the Hon'ble Apex Court rendered a detailed judgment in the case of Andhra Pradesh Public Service Commission in reference to Article 335 of the Constitution of India and gave complete answer to the issue. Thus in reference to the judgment aforesaid, petitioners, belonging to the SC/ST categories are not entitled for relaxation in minimum marks for appearance in interview, rather, it goes against the statutory provision thus cannot be granted in absence of challenge to the Constitutional validity of the Rules. The ground aforesaid is accordingly not accepted.
The last question is in regard to treatment to the backlog vacancies.
Learned counsel for the Commission has categorically explained as to why some backlog vacancies were filled up from general category candidates and other remained unfilled. After the Constitutional amendment in Article 16(4), the State Government issued Notification to amend the Rules and the amended Rules provides for carry forward of unfilled reserve vacancies without filling it from general category candidates.
In the light of the amendment in the Rules those vacancies which came after the amendment were dealt with accordingly and not filled up from general category candidates. The fact, however, remains that present recruitment even pertains to vacancies prior to the amendment in the Constitution and the Rules. As per un-amended provisions, carry forward of reserve vacancy was permissible for three years with an arrangement to fill up those vacancies from general category candidates at the same time. Accordingly, the Commission filled up those reserve vacancies from general category which were existing prior to the amendment.
In the light of the aforesaid, action of the respondent Commission cannot be said to be illegal. Accordingly, aforesaid ground raised by learned counsel for petitioners cannot be accepted.
In view of the discussion made above, application of scaling of marks cannot be said to be proper in the present matter. However, as observed earlier, I am not inclined to disturb the selection already made, hence, these writ petitions are disposed of with the following directions as otherwise given by the Hon'ble Apex Court in para 42 of the case of Sanjay Singh (supra), wherein, without disturbing the selection, appropriate directions were given, which have already been quoted in the preceding paras -
1. If the aggregate of raw marks in the written examination and interview of any of the petitioners in his/ her category is less than the raw marks in the written examination and interview of the last selected candidate in his/ her category, he/she would not be entitled to any relief;
2. Where the aggregate of raw marks in the written examination and interview of any of the petitioners in his category is more than the raw marks in written examination and interview of the last selected candidate in their categories, he would be considered for appointment in respective category by counting his appointment against future vacancies. Similar directions were given by the Hon'ble Apex Court in the case of Sanjay Singh (supra) which are coming out from perusal of para 42 of the said judgment;
3. Above relief will be available only to those petitioners who have secured minimum passing marks for appearance in the interview. This is after taking into consideration the raw marks in written examination.
4. Aforesaid exercise may be undertaken by the respondents within two months from the date of receipt of copy of this order;
5. So far as prayers for grant of relaxation in the marks to the reserve category candidates and other issues in respect of rule 14 raised by the petitioners, are not accepted. The petitioners, who have failed to qualify selection by obtaining required marks in individual papers or in aggregate, would not be entitled for any relief, however, it should be assessed on the raw marks obtained by them; and
6. It is expected of the respondent Commission that in future they will take proper care as to whether method of scaling or moderation has to be applied so as to avoid similar controversy in a case where only examiner variability exists.
In view of disposal of the writ petitions, stay applications also stand disposed of.
(MN Bhandari), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW