Andhra Pradesh High Court - Amravati
Jairuddin Shaik vs The State Of Andhra Pradesh, on 21 September, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
WRIT PETITION No. 15355 OF 2019
AND
WRIT PETITION NO.2368 OF 2020
#
W.P.No.15355 OF 2019
Jairuddin Shaik
R/o. D.No.1-156, Poondla Village,
Bapatla Mandal,
Guntur District and 190 others ..... Petitioners
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education Department
Secretariat, Velagapudi and 7 others ..Respondents
! Counsel for the petitioner : Ms. V. Yashoda
^ Counsel for the respondent :
1. Learned Additional Advocate General
2. Sri Prakash Buddarapu
3. learned Government Pleader for ServicesI-I
W.P.No.2368 OF 2020
Gurugubelli Swathi
R/o. H.No.4-57, Gadda Veedhi
Walteru Post
Santhakavti Mandal,
Srikakulam District and 9 others
..... Petitioners
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education Department
Secretariat, Velagapudi and 1 another ..Respondents
! Counsel for the petitioner : Ms. V. Yashoda
^ Counsel for the respondent :
Learned Government Pleader for School Education
JUDGMENT PRONOUNCED ON: 21.09.2020
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked to
Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see the
fair copy of the Judgment?
2 MSM,J
W.P.No.15355 of 2019 &
W.P.No.2368 of 2020
* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
+ WRIT PETITION No.15355 OF 2019
AND
WRIT PETITION NO.2368 OF 2020
% Dated 21.09.2020
#
W.P.No.15355 OF 2019
Jairuddin Shaik
R/o. D.No.1-156, Poondla Village,
Bapatla Mandal,
Guntur District and 190 others ..... Petitioners
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education Department
Secretariat, Velagapudi and 7 others ..Respondents
! Counsel for the petitioner : Ms. V. Yashoda
^ Counsel for the respondent :
4. Learned Additional Advocate General
5. Sri Prakash Buddarapu
6. learned Government Pleader for ServicesI-I
W.P.No.2368 OF 2020
Gurugubelli Swathi
R/o. H.No.4-57, Gadda Veedhi
Walteru Post
Santhakavti Mandal,
Srikakulam District and 9 others
..... Petitioners
Vs.
$
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
School Education Department
Secretariat, Velagapudi and 1 another ..Respondents
! Counsel for the petitioner : Ms. V. Yashoda
^ Counsel for the respondent :
Learned Government Pleader for School Education
<GIST:
> HEAD NOTE:
3 MSM,J
W.P.No.15355 of 2019 &
W.P.No.2368 of 2020
? Cases referred
1. (2017) 9 SCC 478
2. AIR 2010 SC 2620
3. (2010) 8 SCC 372
4. Writ Petition No.12314/2018 dated 25.06.2018
5. (2013) 10 SCC 519
6. (2014) 14 SCC 523
7. Supreme Court of India Writ Petition © No. 289 of 2007 dated 12th July,
2013
8. (2009) 2 SCC 479
9. (2011) 5 SCC 435
10. (2008) 4 SCC 171
11. (2019) 8 SCC 67
12. (2019) 10 SCC 34
13. (1956) SC 593
14. (2010) 4 SCC 753
15. (2014) 15 SCC 144
16. (2013) 11 SCC 309
17. Civil Appeal No.6875 of 20008, dated 03-04-2020
18. (2015) 11 SCC 493
19. (2017) 4 SCC 357
20. 150 I.L.R Punjab and Haryana (1991) 2
21. 1997 SCC Online Raj. 159
22. (1999) 2 SCC 49
23. (2018) 17 SCC 278
24. (2009) 1 SCC 168
25. (2006) 4 SCC 322
26. (1986) 4 SCC 566
27. (2014) 4 SCC 108
28. (2013) 1 SCC 353
29. (2013) 10 Supreme Court Cases 627
30. 2012 (8) SCC 524
31. 2011 (3) SCC 436
32. 1986 (4) SCC 531
33. Special Civil Application No.9960 of 2013 dated 23.07.2013
34. AIR 1974 SC 259
35. (AIR 1970 SC 898)
36. AIR 2007 SC 950
37. (2003) 10 SCC 136
38. (1991) 3 SCC 47
39. 1994 (1) RLR 533
40. Special Leave Petitions No. 14000 and 15251 of 1986, decided on
11.3.1987
41. (2017) 17 Supreme Court Cases 278
4 MSM,J
W.P.No.15355 of 2019 &
W.P.No.2368 of 2020
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.15355 OF 2019
AND
WRIT PETITION NO.2368 OF 2020
COMMON ORDER:
Both the writ petitions are filed under Article 226 of the Constitution of India claiming the following relief:
"to declare the impugned action of the Respondents in not normalizing the score of the candidates like the petitioners for the examinations conducted by the Respondents in multi shifts to take into account in the difficulty levels of the question papers across the different shifts and normalization is not done based on the fundamental assumption that in all multi shifting examinations the distribution of abilities of candidates is the same across all the shifts and without following the formula recognized under law and not calculating the final score of the candidates like the petitioners in the multi shift examinations in the DSC-2018 for the post of Secondary Grade Teacher Telugu and also not considering the objections against the questions 172, 190, 190, 173 and 31 in Session 1 of 18.01.2019 and Session 2 of 18.01.2019; Session 1 of 24.01.2019; Session 2 of 24.01.2019 and Session 1 of 27.01.2019 respectively made by the petitioners and relying upon the unreferred books and not rectifying the mistakes despite the fact though prima facie appeared as mistakes is illegal arbitrary irrational irregular and unwarranted and required to redraw the list and consequently direct the Respondents to strictly adopt the Normalization Procedure/Technique fundamental and to calculate final score of the candidates in the multi shifting examination in the DSC-2018 for the post of Secondary Grade Teacher and to draw the merit list for selection of the petitioners with their merit so obtained for the purpose of appointment pursuant to the DSC2018 and appoint accordingly with all consequential benefits."
"To issue writ of Mandamus Declaring the action of the respondents in not following the method of Normalization for evaluation of marks of the candidates appeared in the written test conducted for recruitment to the post of Secondary Grade Teachers pursuant to TET cum TRT notification No 768/TRC1/2018 Dt 26.10.2018 as illegal arbitrary and violative of Article 14 16 and 21 of Constitution of India and apart from the same being contrary to the well settled procedure adopted all over the country arid further direct the respondents to follow the procedure of Normalization for evaluation of marks for the purpose of selection for recruitment to the post of Secondary Grade Teachers"
These two writ petitions are filed for identical relief, as such, learned counsel for the petitioners and respondents advanced common argument. Hence, I am of the view that it is appropriate to decide both the writ petitions by common order.
5 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 However, during hearing, in W.P.No.15355 of 2019 learned counsel for the petitioner Sri Vijay Kumar Motupalli has not pressed the relief to the extent shown in italics:
"thus relating to non-consideration of objections against Question No.172, 190, 196, 173 and 31 not considering the objections against the questions 172, 190, 190, 173 and 31 in Session 1 of 18.01.2019 and Session 2 of 18.01.2019; Session 1 of 24.01.2019; Session 2 of 24.01.2019 and Session 1 of 27.01.2019 respectively made by the petitioners.
Hence, this Court is not required to adjudicate as to the contention with regard to non-consideration of objections for various questions in different sessions referred above, while limiting the adjudication of this Court to the other part of the prayer.
Initially, the petition was filed against eight official respondents, but by I.A.No.2 of 2020 dated 30.07.2020, Respondent Nos. 9 to 190 were impleaded in W.P.No.15355 of 2019.
As the issues involved in both the writ petitions are identical, W.P.No.15355 of 2019 is taken as leading case.
Though the facts are not in controversy, a little narration is required for proper adjudication and clarity. Hence, the necessary factual matrix is as follows:
The first respondent has issued notification known as "the Andhra Pradesh Teachers Eligibility Test-cum-Teacher Recruitment Test (Test-cum-TRT) Scheme of Selection Rules-2018" (hereinafter referred to as "Rules") issued vide G.O.Ms.No.67, School Education Department, dated 26.10.2018 (hereinafter, 'G.O.Ms.No.67 dated 26.10.2018'). Pursuant to the said Rules, the second respondent has issued a Notification called as "Teachers Recruitment Test (TRT) for the posts of School Assistants (S.A's), Language Pandits (LPs), Physical Education Teachers (PETs), Music Teachers, Craft
6 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Teachers and Art & Drawing Teachers and TET-cum-TRT for the posts of Secondary Grade Teachers (SGTs) vide Notification No. 768/KTRC-1/2018, dated 26.10.2018 (hereinafter referred to as DSC-2018 Notification"). The second respondent also issued an information bulletin along with the above notification. The second respondent also issued DSC-2018 syllabus, structure and pattern of examination for the post of SGT (Telugu). The DSC-2018 is governed by the rules issued as mentioned above along with the process indicated in the notification and its information bulletin. The pattern of examination was based on the syllabus indicated in the syllabus brochure as per the recommendations of the State Council of Educational Research & Training. It is the obligation on the part of the second respondent to prepare the questions and confine to the answers from the books referred in the syllabus brochure. According to Rules, any objections raised against the initial key, the aspirants have to submit their objections within the time stipulated by the second respondent and no objection will be entertained which are received subsequent to the above stipulated date.
All the petitioners have possessed Intermediate certificate issued by the Board of Intermediate Education and two-year diploma in education (D.Ed)/Diploma in Elementary Education (D.El.Ed). Certificate issued by the Director of Government Examinations, Andhra Pradesh (or) its equivalent certificates, as the case may be. Therefore, all of them are eligible to hold the post of Secondary Grade Teacher. Accordingly, all of them have applied for D.S.C-2018; for the post of SGT (Telugu) and they were permitted to participate for the examination of TET-cum-TRT by issuing Hall Tickets.
7 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 The petitioners further contended that, originally schedule of examination for the post of SGT, according to the Notification, was to be conducted in six days i.e., from 28-12-2018 to 02-01-2019 in two sessions per day and however, according to the note, the sessions may be enhanced or reduced depending upon the number of aspirants. Due to increase of the aspirants, the date of examinations were rescheduled from 18-01-2019 to 31-01-2019 from six days was enhanced to 8 days with 2 sessions in a day (16 sessions).
The petitioners have appeared and fared well in the written examinations as per the allocated day and session and awaiting for result. The second respondent has published initial key on 04-02-2019 for the post of SGT (Telugu). They submit that some of them and others have raised objections about the answers in key for the following numbers viz., Date Session Question No. 18-01-2019 S1 172, 190 18-01-2019 S2 190 24-01-2019 S1 167 24-01-2019 S2 173 27-01-2019 S1 31, 67 & 73 and submitted objections along with supporting material and requested to rectify the mistakes crept in the initial key and requested to publish the final key duly considering the objections against the questions referred to above.
The petitioners raised several objections with regard to non- consideration of objections submitted by them for various questions in Paragraph No.5, but, this Court is not required to adjudicate upon the question of non-consideration of objections raised by these petitioners to 8 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 various questions, since the claim was not pressed by the learned counsel for the petitioner Sri Vijay Kumar Motupalli during hearing.
The respondents have published a list of merit candidates. However, without publishing the overall merit, surprisingly, the presumption of the petitioners referred to above become true as the candidates who appeared in session-1 of 18-01-2019 going to secure employment other than the candidates who appeared in remaining sessions, because of "adding score" to the questions even they did not make any attempt to answer. As a result of which, though they secured merit, lost their opportunity because of the improper merit gained by the individuals belong to session of 1 of 18-01-2019.
Aggrieved by the above action, they have made representations to the respondents to rectify the mistakes crept in the final key, as well as to rectify the erroneous answers to questions as per final key as to the objections against the questions 172, 190, 190, 173 and 31 in Sessions 1 of 18-01-2019 and Session 2 of 18-01-2019, Session 1 of 24-01-2019, Session-2 of 24-01-2019 and Session-1 of 27-01-2019 respectively by adopting procedure of 'Normalisation' to avoid displeasure of the candidates appeared for Session-1 to 16 in the interest of justice, equity and fair play. It is contended that the duty is cast upon the official respondents when the irrationality is brought to their notice to rectify the mistakes and to revise/review their action, but the official respondents failed to do so which is unjust and uncalled for.
The petitioners further contended that, the Union Government/State Government which are conducting examinations for recruitment to various posts previously, concluded the written test in a day. But, the participation of aspirants is raising high and it would be difficult to conclude the examinations in a day or in one session.
9 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Therefore, a method of conducting examinations in multiple sessions in a day or in consecutive days has been introducing and accordingly conducted examinations in a phased manner. The recruiting agencies have received number of objections from the candidates about the selections and securing the score and serious variations have pointed out. Therefore, a procedure called as 'Normalization Procedure/Technique' based on percentile score is being introduced under the shadow of National Testing Agency to avoid hardships neither benefited nor disadvantaged due to the difficulty level examinations wherever conducted in different sessions and accordingly, a formula is brought into existence to calculate the final score of candidates in the multi shifting examinations since decade and accordingly the universities, recruiting agencies etc., introduced a computer based tests for the examinations like IIT, JEE, NEET etc., The said procedure is adopted by the State Government from 2017-18 Academic Years.
The Normalization Procedure/Technique is accepted by all the recruiting agencies including the union ministry to avoid the disadvantages of the aspirants who appeared in different sessions. Now the formula which is holding the field is indicated in Important Notice dated 07-02-2019.
The petitioners submit that 'Normalization' is done in all multi shifting examinations as distribution of abilities of candidates is the same across all the shifts. This assumption is justified and as such the formula will be used by the recruiting agencies and competitive examinations. This procedure also adopted in respect of the EAMCET conducted by the State Government. However, this procedure is bypassed in spite of the request made by the petitioners and others even showing the mistakes and adverse affect between the candidates who 10 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 appeared in multi shifting examinations from Session Nos.1 to 16. Though prima facie, the mistakes are appeared, however, on the pretext of the one reason or the other, the official respondents did not respond to the legitimate and genuine request of the petitioners which is nothing but arbitrary action of the respondents. As a result of which the candidates, who appeared in Session-1 of 18-01-2019 would be more beneficial than the remaining candidates of other sessions. This would lead to a disadvantageous situation on the ground of 'adding score' as well as award of marks due to the multiple choice whereas the petitioners, who by dint of hard work spent many human hours for securing the job even though they scored well, have lost the opportunity due to the method adopted by the Respondents giving a go-bye to the Normalization Procedure/Technique though recognized and observed by this State Government itself in other competitive examinations would amount to invidious discrimination and opposed to the principles of natural justice.
It is further contended that, to avoid hardship to the candidates appearing in multi shift examinations, Normalization Procedure/Technique is the best procedure and therefore, in view of the law declared by the Apex Court and various High courts, the recruiting agencies can conduct competitive examinations by following the Normalization Procedure/Technique and declare the results and requested to issue a direction as stated supra.
The second respondent - The Commissioner & Director of School Education, Andhra Pradesh filed counter affidavit on behalf of the respondents 1 to 8, denying material averments, inter-alia contending that the respondents herein having accepted all the terms and conditions 11 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 in the notifications appeared for the examination and after declaration of the results, the petitioners approached the Court seeking relief for normalization of scores is against the rules in vogue. It is submitted that the contention of the respondents that there is possibility of papers being tough in some examinations and papers may be easier in some examinations and the candidates will have different chances based on difficult level of the paper. In this regard, it is contended that as long as syllabus is one and the same, the respondents cannot have any grievance, because each paper has to be set with different questions and strength of the questions may vary but not the scope. It is further to submit that the respondents herein conducted the examination as per the guidelines issued in G.O.Ms.No. 67, dated 26.10.2018 in allotting the centres which have a capacity to accommodate 300 to 500 candidates in single session. It is further submitted that admittedly the petitioners are aware of the procedure, participated in the selection process and it is not fair to contend that the selection process is illegal. In fact the Supreme Court in a reportable judgment in D. Saroja Kumari v. R. Helen Thilakom and others1 held that candidates who participated in the selection process and found not fit for appointment are estopped from challenging the process of selection. It is further stated that the respondents herein conducted the examination as per the guidelines issued in G.O.Ms.No.67 dated 26.10.2018, the exam centres were allotted in all the 13 districts without any room for any kind of complaints from any corner. It is further submitted that the petitioners herein already appeared and qualified in TET-cum-TRT entrance test which is also a computer based test and now, they cannot question the method of examination.
1 (2017) 9 SCC 478 12 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 It is further contended that, DSC-2018-SGT (CBT) examinations are initially scheduled to be conducted from 28.12.2018 to 02.01.2019 in two sessions per day and the number of days and sessions initially planned are 6 days in 12 sessions. However, as the number of applicants for SGT posts have been increased to 2,82,889, keeping in view of the same the number of sessions have been increased from 12 to 16 sessions in 8 days. Further, the scores obtained by the candidates, the mean values and mean deviations and also graphs for frequency distributions of the scores were calculated as follows: (i) the total number of candidates who took the examination are 2,82,889. The mean value of the scores obtained by the candidates in all the 16 sessions is worked out and the average mean of all the 16 sessions is 40.44. The mean of these 16 sessions vary from 37.55 to 43.29. Thus average mean was 40.44. This mean value varies from +/- 3 for all the 16 sessions. The admissible variation can be +/- 5. (ii) The interpretation of the scores obtained by the candidates in the 16 sessions are detailed as follows :
a) The number of candidates below the overall mean (40.44) is 1,53,832.
It comes to 54.38 percentage;
b) the number of candidates above the overall mean is 1,29,057 the percentage of this is 45.62;
c) an analysis of the candidates who got above the overall mean marks is presented hereunder :
(1) 28.48% of candidates got marks between 40 and 50.
(2) 12.34% of the candidates got marks between 50 and 60.
(3) only 4.8% of the total sample scored between 60-90.
Thus, in all the 16 sessions the frequency distribution curves were drawn and they show that the graphs are all normal representations. It is further submitted that, the EAMCET authorities issued the procedure 13 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 of normalization along with their notification. But whereas in the case of DSC-2018, no such prior commitment is given on the part of the Government of AP or School Education Department about the practice of normalization.
It is further submitted that, Supreme Court in H.P.Public Service Commission v. Mukesh Thakur & Anr2, examined whether it is permissible for the Court to take upon itself the task to examine discrepancies and inconsistency in question paper and evaluation thereof assigned to examiner - selection board. The Supreme Court held that the Court cannot take upon itself the task of statutory authority. It is submitted that the scope of interference in academic matters has been examined by the Supreme Court in many cases. In Basavaiah (Dr.) v. Dr.H.L.Ramesh3, the Court held that: "the courts have a very limited role particularly when no malafides have been alleged against the experts constituting the Selection Committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, in Amit Kumar v. M.P. Public Service Commission4 the candidates should never make an endeavour to sit in appeal over the decisions of the experts. The Courts must realise and appreciate its constraints and limitations in academic matters."
It is further submitted that Supreme Court in another judgment reported in University Grants Commission v. Neha Anil Bobde5, held that in academic matters, unless there is a clear violation of statutory provisions, the regulations or the notification issued, the courts shall keep their hands off since those issues fall within the domain of the 2 AIR 2010 SC 2620 3 (2010) 8 SCC 372 4 Writ Petition No.12314/2018 dated 25.06.2018 5 (2013) 10 SCC 519 14 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 experts. In the present case, the petitioners themselves contends that for candidates belonging to particular sessions were only benefited cannot be entertained as the framing of questions have been done by the expert committee who are very well experienced in framing of questions. The respondent specifically denied the contention of the petitioners that only the candidates who appeared for sessions 1 & 2 conducted on 29-1-2019 and 31-12019 were only benefited and the rest were not benefited is baseless. Further, unless and until, there is a provision of re-valuation of answer books in the relevant rules, the candidate cannot challenge the same as was held by the Supreme Court in the case of Central Board of Secondary Education v. Khushbu Srivastava and others6, wherein the Court held that, in the absence of any provision for the re-evaluation of answers books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his marks. The other contentions raised in all those paragraphs are hereby denied and at this juncture the case of the petitioners cannot be considered for normalization as it will lead to more complication and the ranks of all applicants will be changed. Thus, there are no grounds for interference of this High Court and the writ petitions are liable to be dismissed.
During hearing, learned counsel for the petitioner Sri Vijay Kumar Motupalli mainly has drawn attention of this Court to the mistakes committed in the key and addition of marks to the candidates who appeared for the examination in different sessions and difficulty level, easy and moderate level of papers prescribed to various sessions. However, the main endeavour of the learned counsel for the petitioners is that, when a competitive examination was held in multiple sessions, there is every possibility of variation in the question paper set by 6 (2014) 14 SCC 523 15 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 different examiners for different sessions. In such case, when the candidate appearing in different sessions, difficulty levels may vary, in one session difficulty level is higher, he will lose fair chance of competing with the other candidates who appeared in other sessions where paper is easy or moderate. In those circumstances, while valuing the paper, 'Normalization Procedure/Technique' is to be adopted, otherwise the meritorious candidates will lose an opportunity of competing with the other candidates who fared well in the examination when paper was easy. Therefore, to avoid variation in the standard of examination due to multiple examinations in different sessions, the procedure being followed by various authorities in the selection process is Scaling or Moderation or Normalization.
G.O.Ms.No.67 dated 26.10.2018 containing notification for Teacher Eligibility Test (TET)-cum-Teacher Recruitment Test (TRT), issued by the State Government did not specify the mode of valuation of the papers. Even in the absence of such specification for valuation of the papers, the authorities may adopt its own procedure depending upon the nature of examination, more particularly Normalization Procedure/Technique can be adopted in view of the judgment of the Apex Court in Mahinder Kumar & Ors. v. High Court of Madhya Pradesh Through Registrar General & Ors.7.
Learned counsel for the petitioners has also drawn attention of this Court to various procedure being followed by the national government agencies for conducting examinations like National Testing Agency (NTA) and also drawn attention of this Court to the need of normalization and examination in terms of notification issued by the Assistant Commissioner (RPS), Kendriya Vidyalaya Sanghatan, New Delhi in 7 Supreme Court of India Writ Petition © No. 289 of 2007 dated 12th July, 2013 16 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 F.11054/2017/KVS(H)/RPS dated 16/17.04.2018 for valuation of papers, adopting Normalization Procedure/Technique. On the strength of the notice issued by Kendriya Vidyalaya Sanghatan and procedure being adopted by National Testing Agency, which are governmental agencies, learned counsel for the petitioners contended that, to provide fair chance to the candidates appearing for the examination, Normalization Procedure/Technique is the best procedure to select the meritorious candidates who appeared in the examination in different sessions, as there is every possibility of variation in the standard of question paper and valuation also, sometimes manual valuation.
In view of the specific contention raised by the Additional Advocate General for the State in the counter affidavit, though delay in approaching the Court is sufficient to reject the writ petitions, learned counsel for the petitioners would draw the attention of this Court to judgment of the Apex Court in S.S.Balu and another V. State of Kerala and Others8 to repel the contention, to contend that delay is not a ground to exercise power of judicial review under Article 32 of the Constitution of India and on the basis of the principle laid down in the above judgment, learned counsel for the petitioner contended that delay does not matter while deciding the serious questions of fair opportunity to the participants in the examination for selection as Secondary Grade Teachers and requested to set-aside the final selection list, while directing the respondents/State Government to apply the procedure of normalization and prepare final selection list.
Sri Sudhakar Reddy Ponnavolu, Learned Additional Advocate General mainly contended that when these petitioners, having accepted the terms of the notification regarding selection process specified in 8 (2009) 2 SCC 479 17 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 G.O.Ms.No.67 dated 26.10.2018, participated in competitive examination and having failed to succeed in the examination, they cannot turn around and now contend that the procedure adopted by the respondents for valuation of the papers is contrary to law and they are estopped to raise such question at this stage. In support of his contention, placed reliance on the judgments of Supreme Court in D.Sarojakumari V. R.Helen Thilakom and Others (referred supra), Joint Action Committee of Air Line Pilots' Association of India (Alpai) and Others v. Director General of Civil Aviations and Others9, Dhananjay Malik and Otherrs v. State of Utttaranchal and Others10, Municipal Corporation of Delhi v. Surender Singh and Others11, Air Commodore Naveen Jain v. Union of India and Others12, Nagubai Ammal & Others v. B. Shama Rao & Others13, Karam Kapahi and Others v. Lal Chand Public Charitable Trust and Another14, State of Punjab and Others v. Dhanjit Singh Sandhu15, Ramesh Chandra Shah and Others v. Anil Joshi and Others16, Bhagwat Sharan (Dead thr.LRs.) v/ Purushottam & Ors17, Pradeep Kumar Rai and Others v. Dinesh Kumar Pandey and Others18, Ashok Kumar and Another v. State of Bihar and Others19.
The main endeavour of the learned Additional Advocate General is that, Principle of Normalization cannot be applied when the State specified the process of selection in G.O.Ms.No.67 dated 26.10.2018 and notification itself. In the notification itself, the respondents/State Government cautioned the prospective candidates before applying to go 9 (2011) 5 SCC 435 10 (2008) 4 SCC 171 11 (2019) 8 SCC 67 12 (2019) 10 SCC 34 13 (1956) SC 593 14 (2010) 4 SCC 753 15 (2014) 15 SCC 144 16 (2013) 11 SCC 309 17 Civil Appeal No.6875 of 20008, dated 03-04-2020 18 (2015) 11 SCC 493 19 (2017) 4 SCC 357 18 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 through the content of the Government Order as to the manner, process of selection and valuation, having accepted the process of selection specified in G.O.Ms.No.67 dated 26.10.2018, the petitioners cannot raise such objections at this stage after publication of final list of candidates as Secondary Grade Teachers in TET-cum-TRT-2018. Apart from this, long delay of seven months in approaching this Court is sufficient to throw the claim of these petitioners overhead, more particularly, latches on their part in approaching this Court.
It is specifically contended that the total number of posts notified are 3666 and on account of delay in finalization of selection of teachers, the State is facing lot of problems to impart education to the students at various levels, more particularly, in rural and urban areas in the schools maintained by the State and local bodies. If it is further delayed, the candidates selected as per final list will be put to serious inconvenience and to avoid such inconvenience, requested to dismiss the writ petitions at this stage.
Learned Senior Counsel Sri A. Satya Prasad, appearing for the unofficial Respondent Nos. 9 to 190 contended that Normalization Procedure/Technique cannot be applied to the present examination, since this Normalization Procedure/Technique was not accepted in the G.O.Ms.No.67 dated 26.10.2018 and the notification contained therein. In such case, merit alone is the basis for selection of the candidates for the post of Secondary Grade Teachers and relied on the judgments of Apex Court in Panjab University and another v. Ashwinder Kaur20, Rajasthan Public Service Commission v. Ramesh Chandra Pilwal21, State of Maharashtra v. Ravindra Kumar Rai22, Disha Panchal v. 20 150 I.L.R Punjab and Haryana (1991) 2 21 1997 SCC Online Raj. 159 22 (1999) 2 SCC 49 19 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Union of India23 in support of his contention and on the strength of the principles laid down in the catena of perspective pronouncements referred above, learned Senior Counsel contended that it is not a fit case at this stage, to interfere with the selection process by this Court, while exercising power of judicial review and cannot direct the respondents/State Government to adopt Normalization Procedure/Technique for finalization of merit list.
It is further contended that the petitioners are unable to establish the major variation in the marks secured by the participants of the examination in different sessions, except pointing out mistakes in the key and addition of marks by way of "Add Score" as mentioned in the final key. Therefore, in the absence of any material to show major variation i.e. more than permissible variation in the marks secured by the participants in the examination in various sessions, this Court cannot issue such direction to follow Normalization Procedure/Technique after finalization of list at this stage and requested to dismiss the writ petitions.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether delay of approximately seven months in approaching the Court after publication of final selection list is a ground to reject the claim of these petitioners?
2. Whether the petitioners participated in the examination for selection of Secondary Grade Teachers i.e. TET-cum-TRT-2018 are estopped from raising any objection as to the mode of valuation after declaration/publication of final selection list, completing selection process?
23 (2018) 17 SCC 278
20 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020
3. Whether there is any major variation of marks secured by the participants in the examination held in different sessions. If so, whether selection of candidates based on the guidelines fixed in G.O.Ms.No.67 School Education (Exams) Department dated 26.10.2018 i.e selection on the basis of merit is unfair, disabled the participants appearing in difficult examinations in different sessions, though meritorious, lose their opportunity for being selected as Secondary Grade Teachers in the selection process. If so, whether this Court can direct the respondents to follow "Normalization Procedure/Technique" to the participants in the examination of different sessions to have fair selection process? P O I N T No.1 One of the major contentions raised before this Court in the counter affidavit by the learned Additional Advocate General is that, delay in approaching the Court disentitles the petitioners to claim any relief.
No doubt, in normal course of events, delay or latches are one of the grounds to deny the relief exercising power of judicial review under Article 226 of the Constitution of India, which is purely discretionary in nature.
The examination was held on different dates commencing from 18.01.2019 to 31.01.2019. The initial key was published on 04.02.2019, calling for objections and after considering objections, final key was published/declared on 13.02.2019. These petitioners approached this Court by filing the present writ petitions on 27.09.2019 invoking jurisdiction of this Court under Article 226 of the Constitution of India. Thus, there is delay of seven months approximately. Whether such delay disentitles these petitioners to claim any relief under Article 226 of the Constitution of India is the question to be decided.
21 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Undoubtedly, there are two different lines of judgments, one in favour of these petitioners and another set in favour of the respondents. Here, in this case, the fate of 3,666 participants is involved in the process on account of their participation. Everyone claimed that they fared well in the examination, but secured less marks due to difficulty level in the session which they appeared and the other papers are easier than the paper which they answered. Such question cannot be decided by this Court at this stage when fate of large number of participants is involved, the Court has to take a practical approach to do justice to all by giving fair chance of participation in the selection process, without adopting pedantic or technical approach to decide such issue, giving much preference to the delay. However, delay is not abnormal and it is approximately seven months. This view is fortified by various judgments of the Apex Court.
It is useful to refer the passage from City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors24, wherein the Apex Court while dwelling upon jurisdiction Under Article 226 of the Constitution, has expressed thus:
"The Court while exercising its jurisdiction Under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
24
2009) 1 SCC 168 22 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Delay or latches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers Under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. (vide Karnataka Power Corporation Ltd. Through its Chairman & Managing Director and Anr. v. K. Thangappan and Anr25) The High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. (vide State of M.P. v. Nandalal Jaiswal26) 25 (2006) 4 SCC 322 26 (1986) 4 SCC 566 23 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 In Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T.T. Murali Babu27, it was held that, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and latches may not be fatal but in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant, -a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
In Tukaram Kana Joshi and Ors. v. Maharashtra Industrial Development Corporation & Ors28 it has been ruled that, delay and latches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and latches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the 27 (2014) 4 SCC 108 28 (2013) 1 SCC 353 24 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and latches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. Further, it was held that, no hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of latches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of latches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners.
Similar issue came up for consideration before the Apex Court in Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others29, wherein the Apex Court while deciding a service dispute highlighted the jurisdiction of the High Court to exercise power when the parties approached the Court at belated stage observed as follows:
"In all these cases, the aggrieved person shall have a right to approach the Tribunal. Now, the sole question which falls for our consideration is: when an aggrieved person can apply before the Court, if no limitation is prescribed in the statute for filing an appeal before the appropriate forum. We have duly considered the said question. Even if 29 (2013) 10 Supreme Court Cases 627
25 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time ? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case."
(vide Cicily Kallarackal v. Vehicle Factory30, State of Orissa v. Mamata Mohanty31 and K.R. Mudgal v. R.P. Singh32). In all the judgments, it has been held that the application should be rejected on the ground of inordinate delay.
The consistent view of the Apex Court in various judgments referred above was that, abnormal delay, which is unexplained disentitles the petitioners to claim such discretionary relief under Article 226 of the Constitution of India.
But, however, Sri Vijay Kumar Motupalli, learned counsel for the petitioners contended that, delay by itself is not a ground to reject the claim of these petitioners as the Court is deciding the fate of thousands of participants and placed reliance on the judgment of the Apex Court in S.S.Balu and another v. State of Kerala and Others (8th cited supra), wherein the Apex Court held that, a person does not acquire a legal right to be appointed only because his name appears in the select list. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. 30 2012 (8) SCC 524 31 2011 (3) SCC 436 32 1986 (4) SCC 531 26 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Furthermore, the rank list was valid for a period of three years. Its validity expired on 5.6.2000. Another Select List was published for the period from 16.9.2002 to 15.9.2005. Vacancies in terms of the said Select List have also been filled up. "delay defeats equity". Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal there against, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and latches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.
In a similar circumstance in Mr. V. Union of India33, question arose before Division Bench of the Gujarat High Court as to whether applications should be entertained on the alleged ground of delay. While dealing with said applications, the Division Bench quoted the judgment of Constitution Bench of the Supreme Court in Ramachandra Shankar Deodhar and others v. The State of Maharashtra34. The issue before the Supreme Court was one relating to promotion to the post of Deputy Collector. A preliminary objection was raised on behalf of the respondents that the petitioners were guilty of gross latches and delay in filing the petition. Such objection was raised as the divisional cadres of Mamlatdars/ Tahsildars were created as far back as 1st November 1956 by the Government Resolution of that date, and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select lists, which was a necessary consequence of the creation 33 Special Civil Application No.9960 of 2013 dated 23.07.2013 34 AIR 1974 SC 259 27 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 of the divisional cadre of Mamlatdars/Tahsildar, had been in operation for a long number of years. It was pointed out by the respondents that there was a delay of more than ten to twelve years in filing the petition since the accrual of the cause to the complaint and such delay was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. The Supreme Court negatived such preliminary objection by observing as under:
"We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichan v. H.B.Munshi35, is one discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit&. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose."
In view of the principle laid down in the above judgments, delay and latches by itself is not a ground to deny exercise of discretion and it is not an absolute impediment. There can be mitigating factors, continuity of cause of action. Therefore, when the petitioners approached this Court with short delay of seven months, the Court cannot deny exercise of judicial discretion while exercising power of judicial review under Article 226 of the Constitution of India, more particularly, when the interest of several people is involved in the selection process, that too, the delay is not abnormal and it can be described as short delay. Hence, taking into consideration the totality of the circumstances and interest of persons involved in the matter and to have fair selection process, I find that delay of seven months in approaching the Court is not a ground to deny exercise of judicial discretion under Article 226 of the Constitution of India. Consequently, 35 (AIR 1970 SC 898) 28 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 the contention of the learned Additional Advocate General that delay disentitles these petitioners to claim discretionary relief under Article 226 of the Constitution of India is liable to be rejected, while accepting the contention of the learned counsel for the petitioners. Accordingly, I hold that, delay is not a ground in the present set of circumstances, accordingly the point is answered in favour of the petitioners and against the respondents.
P O I N T No.2 Sri Sudhakar Reddy Ponnavolu, learned Additional Advocate General for the State vehemently contended that, when the petitioners participated in the examination after confirming themselves about the eligibility, procedure for selection of candidates and procedure for finalization of list prescribed under G.O.Ms.No.67, dated 26.10.2018 they are now precluded from raising such contention that the procedure to be adopted by the Government is 'Normalization Procedure/Technique' and placed reliance on the judgment of the Apex Court in D. Saroja Kumari Vs. R. Helen Thilakom and others (1st cited) an identical question came up for consideration regarding participation in examination, wherein the Apex Court after considering the facts and circumstances of the case concluded that when once a person participates in the examination knowing the mode of selection etc., he cannot now agitate the same based on the principle of estoppel, as the person cannot be permitted to aprobate and reprobate.
In Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and Others v. Director General of Civil Aviations and Others (9th cited), the Apex Court held that, The doctrine of election is 29 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of stopple by election is one of the species of estoppels in pais (or equitable stopple), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.
In Dhananjay Malik and Otherrs v. State of Utttaranchal and others (10th cited) the Apex Court considered the scope of estoppel and observed that, having unsuccessfully participated in the process of selection without any demur, the petitioners are estopped from challenging the selection criterion. If they had any valid objection, they should have challenged the advertisement and selection process without participating in the selection. However, plea relating to non-fulfilment of educational qualifications also considered and merits and rejected.
In Municipal Corporation of Delhi v. Surender Singh and Others (11th cited) appointment of Assistant Teachers (Primary) in school of appellant MCD was taken up. No cut-off marks were prescribed in advertisement, but in terms of Clause 25 of advertisement discretion was granted to Delhi Subordinate Services Selection Board to fix minimum qualifying marks to achieve qualitative selection. The petitioners participating in the selection process challenged the said clause after completion of selection process. The Apex Court held that the principle of approbate and reprobate is applicable and candidates at this stage cannot complaint thereabout, besides, none of the petitioners had 30 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 secured more marks than last selected candidate and hence, there could be no further consideration in exercise of judicial review.
It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome after participating in the selection process (vide Air Commodore NaveenJain v. Union of India (12th cited).
In Nagubai Ammal & Others v. B. Shama Rao & Others (13th cited), the Apex Court discussed the Principle of Estoppel as follows:
"21. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in O. S. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in O. S. No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [1921] 2 K.B. 608, and in particular, the observations of Scrutton, L. J., at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal, who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction, the principal next filed a suit against the agent for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes, L. J. :
"Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act".
22. The observations of Scrutton, L. J. on which the appellants rely are as follows :
"A plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election
- namely, that no party can accept and reject the same instrument : Ker v. Wauchope [1819] 1 Bli. 1, 21 : Douglas- Menzies v. Umphelby [1908] A.C. 224. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction".
31 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020
23. It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England, Volume XIII, page 454, para 512 :
"On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e. g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it"
(Emphasis supplied) The Principle of Estoppel laid down in the above judgments was reiterated by the Apex Court in Karam Kapahi and Others v. Lal Chand Public Charitable Trust and Another, State of Punjab and Others v. Dhanjit Singh Sandhu, Ramesh Chandra Shah and Others v. Anil Joshi and Others, Bhagwat Sharan (Dead thr.LRs.) v Purushottam & Ors, Pradeep Kumar Rai and Others v. Dinesh Kumar Pandey and Others, Ashok Kumar and Another v. State of Bihar and Others, The State of Andhra Pradesh and Others (all referred supra).
Sri Vijaya Kumar Mottkupalli, learned Counsel for the petitioners did not dispute the law laid down by the Apex Court in various judgments relied on by the learned Additional Advocate General.
Applying the principles laid down by the Apex Court in the judgments referred supra to the facts of the present case, the petitioners appeared for the examination after going through the selection process prescribed under G.O.Ms.No.67 dated 26.10.2018, more particularly, for the Secondary Grade Teachers i.e., merit based on the marks secured both in TRT-cum-TET examination. Hence, based on the principles laid down by the Apex Court in the judgments referred supra, the petitioners 32 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 are disentitled to raise such contention, having participated in the selection process. On this ground alone, the petitions are liable to be dismissed. Accordingly, the point is held against the petitioners and in favour of the first respondent.
P O I N T NO. 3
The examination is computer based i.e. online examination. Since the major contention of the petitioners is that, on account of variation of question paper in different sessions of examination, there is no fair process of selection, as there is a possibility of change of difficulty level/standard in the examination paper set by different examiners. Consequently, there is possibility of losing chance of getting selection by the meritorious candidates, but who participated in the session where question paper is easy or moderate, their chances are bright to get selection and some of the candidates who participated in the difficult paper cannot compete with the other persons who participated in the examination and chances of they being selected are bleak. Thus, when examinations were held in multiple sessions, Normalization Procedure/Technique is to be followed to have fair selection of candidates in the examination based on merit.
When, no norms were fixed for valuation of the papers, by following Normalization Procedure/Technique, or Scaling or Moderation procedure, still, the respondents are entitled to adopt Normalization Procedure/Technique, but they do not follow it. On the other hand, the respondents valued the paper on the basis of merit without standardizing or normalizing the procedure.
33 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Repelling this contention, Sri Sudhakar Reddy Ponnavolu, learned Additional Advocate General for the State and learned Senior Counsel Sri A. Satya Prasad for the unofficial Respondent Nos. 9 to 190 contended that the examinations were contended strictly adhering to the guidelines fixed in the notification read with G.O.Ms.No.67 dated 26.10.2018. In the absence of details of such major variation between two sessions or among different sessions, the contention of these petitioners cannot be upheld. In view of these rival contentions, it is appropriate to advert to the notification which is the basis for setting up the process into motion. Undisputedly, notification was issued for selection of Secondary Grade Teachers in different subjects in district wise. The notification is meant for filling up teacher posts vacancies in Government, Zilla Praja Parishad, Mandal Praja Parishad, Special Schools, Integrated Tribal Development Agency, Ashram, Municipalities, Municipal Corporation Schools. The total numbers of posts in various departments are tabulated as under:
S.No Departments No of
vacancies
1 School Education (Govt. ZPP/MPP) 4334
2 School Education (Special Schools) 07
3 Municipal Schools 1100
4 Tribal Welfare Department
(Ashram Schools-Agency) (Schedule Area) 500
5 Tribal Welfare Department
(Ashram Schools - Non-Agency) (Non-
Schedule Area) 300
TOTAL 6,241
As per Clause (10) of the Notification i.e. Schedule of Written Test (TRT and TET cum TRT) is fixed for conducting examinations for selection of Secondary Grade Teachers in two sessions per day. Session-I is from 9:00 A.M to 12:00 noon, whereas Session-II is from 02:00 P.M to 05:00 P.M and duration of examination is three hours. At the same time, 34 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Clause 17 specified the basis for issuing this notification prescribing eligibility for each category of the post, reservations, mode of selection, pattern of examination and the same is extracted hereunder for better appreciation of the case:
"Eligibility for each category of the post, reservations, mode of selection, pattern of examination including duration, total marks and qualifying marks and other procedure to be followed in selection are as per G.O.Ms.No.67, Edn. Dept., dated: 26.10.2018 and as per Govt. Memo.No. 14846/Exams/2014, dated 02-12- 2014. Candidates are advised to go through this G.O. and Govt. Memo thoroughly before payment of fee and filling the applications to know their eligibility."
Thus, the basis for notification including mode of selection is primarily, G.O.Ms.No.67 dated 26.10.2018 and Information Bulletin issued by Commissioner of School Education, Andhra Pradesh dated 26.10.2018. The selection procedure is prescribed in Clause 19 of the G.O.Ms.No.67 dated 26.10.2018 Information Bulletin and it is extracted hereunder:
"19. SELECTION:
(a) For School Assistants (SAs) and Language Pandits (LPs) selection will be on the basis of combined marks secured in dthe Written Test (TRT) and APTET (20%) Weightage except School Assistant (Physical Education) duly following the Provisions of Rule 18.
(b) xx xx
(c) xx xx
(d) xx xx
(e) For Secondary Grade Teachers (SGTs) selection will be on the basis of marks secured in the Written Test (TETcumTRT) duly following the Provisions of Rule 18."
G.O.Ms.No.67 dated 26.10.2018 laid down comprehensive procedure for conducting examination, eligibility, method of selection and other requirements which are specified in G.O.Ms.No.67 dated 26.10.2018 itself.
According to Sub-clause (i) of Clause 17 of G.O.Ms.No.67 dated 26.10.2018, for School Assistants (SAs) and Language Pandits (LPs) 35 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 selection will be on the basis of combined marks secured in the Written Test (TRT) and APTET (20%) Weightage except School Assistant (Physical Education) duly following the provisions of Rule 18. Again in Sub-clause
(v) of Clause 17, for Secondary Grade Teachers (SGTs) selection will be on the basis of marks secured in the Written Test (TET cum TRT) duly following the Provisions of Rule 18.
All these petitioners appeared for examination for selection of Secondary Grade Teachers (SGTs). Therefore, the relevant clause in G.O.Ms.No.67 dated 26.10.2018 is Sub-clause (v) of Clause 17. At the same time, Clause 22 of G.O.Ms.No.67 dated 26.10.2018 deals with miscellaneous provisions. According to Sub-clause (ii) of Clause 22, the Rules specified in G.O.Ms.No.67 dated 26.10.2018 alone will prevail over any other Rules relating to recruitment of teachers and they are alone applicable for the purpose of recruitment of Teachers. Thus, in view of the overriding effect given to these Rules, the procedure specified for selection of Secondary Grade Teachers is purely on merit basis, as per Sub-clause (v) of Clause 17 of G.O.Ms.No.67 dated 26.10.2018 extracted above.
No doubt, when lakhs of candidates are appearing for the examinations, it is difficult to conduct written examination at once, its valuation physically is impossible and even if examination is conducted and valued those papers by different valuers, there is every possibility of creeping in errors. Hence, the second respondent decided to hold computer based examination i.e. online examination through recruiting agency and accordingly, agency conducted examinations in different sessions from 28.12.2018 to 02.01.2019 @ two sessions per day. However, the main grievance of these petitioners from the beginning is 36 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 that, on account of multiple session examinations, there is a possibility of variation in the standard of question paper i.e. difficulty level, as the papers were selected by different examiners as on different dates.
No doubt, there is a possibility of variation in the standard of paper or difficulty levels and it depends upon the examiners who set the question paper for each session. However, that does not mean that there is a possibility of major variation in the marks secured by the candidates appeared for examination in various sessions. The entire list of marks obtained by the candidates appeared in different sessions are not placed on record by these petitioners to establish that there is substantial variation in the marks secured by the candidates appeared for different sessions of the examination. Learned counsel for the petitioners Sri Vijay Kumar Motupalli has drawn attention of this Court to final key for TET- cum-TRT examination for Secondary Grade Teachers. The final key consists of question numbers, answers, mistakes, if any, crept in the key and finally marks to be added to the candidates, irrespective of their attempting those questions.
TET-CUM-TRT-2018 - FINAL KEY
SGT - 18-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
102 Add score 129 Add score
114 Add score 143 Add score
120 Add score 190 Add score
128 Add score
143 Add score
172 Add score
190 Add score
Total 07 Total 03
37 MSM,J
W.P.No.15355 of 2019 &
W.P.No.2368 of 2020
TET-CUM-TRT-2018 - FINAL KEY
SGT - 19-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
6 Add score 33 Add score
39 Add score
49 Add score
Total 01 Total 03
TET-CUM-TRT-2018 - FINAL KEY
SGT - 20-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
20 Add score
139 Add score
Total 02 Total 0
TET-CUM-TRT-2018 - FINAL KEY
SGT - 24-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
9 Add score
Total 01 Total 0
TET-CUM-TRT-2018 - FINAL KEY
SGT - 25-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
3 Add score 49 Add score
40 Add score
Total 02 Total 01
TET-CUM-TRT-2018 - FINAL KEY
SGT - 27-01-2019
SESSION - I SESSION - II
Question Total marks ordered to Question No. Total marks ordered
No. be awarded for the to be awarded for the
wrong answers wrong answers
46 Add score
Total 01 Total 0
38 MSM,J
W.P.No.15355 of 2019 &
W.P.No.2368 of 2020
From the above tables, as per final key, it is evident that, in SGT dated 18.01.2019, Session No.1, questions/answers were wrongly given for Question Nos. 102,114,120,128,143,172 & 190 and therefore, seven marks are ordered to be added. Similarly, number of marks ordered to be added for the questions wrongly mentioned in various other sessions is tabulated above.
Taking advantage of the mistakes in the answers or questions given in the question papers for various questions referred above, learned counsel for the petitioners contended that, on account of more mistakes, more marks are to be added viz., 07 marks in Session-I and 03 marks in Session-II dated 18.01.2019, 01 mark in Session-I and 03 marks in Session-II dated 19.01.2020, 02 marks in Session-I and 'Nil' marks in Session-II dated 20.01.2020, 01 mark in Session-I and 'Nil' marks in Session-II dated 24.01.2020, 02 marks in Session-I and 01 mark in Session-II dated 25.01.2020 and 01 mark in Session-I and 'Nil' marks in Session-II dated 27.01.2020. Consequently, on account of addition of marks for the wrong questions or answers mentioned in the question papers, the persons who appeared in other sessions lost their fair chances of competing with the candidates to whom marks were added, on account of these mistakes there is a possibility of losing fair chances of selection, though they are meritorious. It is difficult to accept this contention, for the simple reason that any of the petitioners are meritorious, they would have answered the questions correctly, since syllabus for all sessions is same. If wrong questions were framed in the paper itself, they are entitled to have the benefit of addition of marks for those questions, irrespective of answering those questions. Hence, the alleged questions wrongly given in the papers for different sessions will not make any difference in the merit itself. The merit will prevail 39 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 irrespective of erroneous or wrong questions and answers given in different papers. Hence addition of marks for the wrong answers given in the question papers is not a ground to order preparation of merit/final selection list based on 'Normalization Procedure/Technique'.
Though the petitioners produced final key for the papers, they did not produce the final marks of the candidates appeared in the examination to find out the variation of the average marks among the candidates appeared for the examination in different sessions. Equally, the respondents also did not produce any details as to the marks secured by candidates appeared for examinations in different sessions. But, the respondent in the counter pleaded that the variation is only +/- 3 though, +/- 5 is permissible. In the absence of any data before this Court, it is difficult to conclude that the candidates appeared for the examination in one session lost their fair opportunity to compete with the candidates appeared in the other sessions in the selection process. Marks secured by individuals are available with the recruiting agency and the respondents can produce those details. But for one reason or the other, no such data is placed on record by either of the parties. In the absence of those details, I am afraid to conclude that, on account of selection of Secondary Grade Teachers purely on merit strictly adhering to sub-clause (v) of clause 17 of G.O.Ms.No.67 dated 26.10.2018, and information bulletin dated 26.10.2018 is irrational.
When the second respondent issued guidelines directing the candidates to go through G.O.Ms.No.67 dated 26.10.2018 before submitting the application to appear for the examination of TRT-cum- TET, they are expected to go through the eligibility criteria, selection procedure, based on merit i.e., marks secured in TRT-cum-TET 40 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 examination vide Clause 17(v) of G.O.Ms.No.67. Having appeared for the examination, knowing that the selection procedure for appointment of Secondary Grade Teacher, they cannot now contend that Normalization Procedure/Technique has to be applied when examination was conducted in multiple sessions. When the second respondent fixed specific procedure for valuation of papers i.e., merit vide clause 17(v) of G.O.Ms.No.67, dated 26.10.2018, they cannot now deviate the mode of selection that is based on merit and if the mode of selection is changed, that will give rise to another litigation. Therefore, in the absence of proof of variation of minimum or maximum marks among the candidates appeared for examination in different sessions, it is highly difficult for me to hold that the selection process was not fair, as contended by the learned Counsel for the petitioners. Consequently, the contention of the learned Counsel for the petitioners that final preparation of merit list is not fair, is rejected.
One of the major contentions raised by the learned Counsel for the petitioners is that on account of parity in the standard or difficulty level of examination in various sessions, the petitioners lost their opportunity.
As discussed above, the petitioners have failed to establish such abnormal parity in the standard or difficulty level of question papers; more so, they did not produce any iota of evidence to substantiate contention.
The main endeavour of the learned Counsel for the petitioners is that, when examination is multi-sessioned, the authorities have to follow fair procedure for final selection of candidates, applying various principles like Normalization, Scaling or Moderation, as there is every possibility of variation in the standard or difficulty level of examination 41 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 question papers set by different examiners for various session. No doubt, when such multi-sessioned examination is conducted, different agencies are following Normalization Procedure/Technique. Learned Counsel for the petitioners has drawn attention of this Court to the procedure being followed by JEE for admission into national wide engineering courses in IITs, National Testing Agency and placed on record the guidelines issued by Kendriya Vidyalaya Sanghatan for deciding the merit, for admission into Kendrilya Vidyalaya Sanghatan based on Score Normalization, where the Kendriya Vidyalaya Sanghatan fixed certain formula for Score Normalization and highlighted the need for "Score Normalization" as follows:
"Need for Normalization in exam Exam pertaining for a particular post/course could be spread across multiple shifts which will have different question paper for each shift. Hence the normalization of scores need to be carried out for all the candidates who had written the exam, across shifts for the same post/course.
Normally, after the exam, candidates are provided a window of few days, post the publishing of question paper and the correct keys. Based on the objections raised, SMEs work on that and with customer consultation finalize to ignore some objected questions and the remaining questions will be considered for score evaluation and subsequently the score normalization.
Inputs required for score normalization process
1. Raw score report of the candidates who appeared for a particular post, across all shifts
2. The actual number of valid questions to be considered, post the objection."
Similarly the National Testing Agency which is a Governmental Agency, highlighted the Normalization Procedure/Technique based on percentile score as follows:
'NTA will be conducting examinations on multiple dates, generally in two sessions per day. The candidates will be given different sets of questions per session and it is quite possible that in spite of all efforts of maintaining equivalence among various question papers, the difficulty
42 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 level of these question papers administered in different sessions may not be exactly the same. Some of the candidates may end up attempting a relatively tougher set of questions when compared to other sets. The candidates who attempt the comparatively tougher examination are likely to get lower marks as compared to those who attempt the easier one. In order to overcome such a situation, "Normalization Procedure/Technique based on Percentile Score" will be used for ensuring that candidates are neither benefited nor disadvantaged due to the difficulty level of the examination. With the objective of ensuring that a candidate's true merit is identified, and that a level playing field is created in the above context, the Normalization Procedure/Technique, set out below shall be adopted, for compiling the NTA scores for multi session papers.
The process of Normalization is an established practice for comparing candidate scores across multi session papers and is similar to those being adopted in other large educational selection tests conducted in India. For normalization across sections, NTA shall use the percentile equivalence. Percentile Scores: Percentile scores are scores based on the relative performance of all those who appear for the examination. Basically the marks obtained are transformed into a scale ranging from 100 to 0 for each session of examinees. The Percentile Score indicates the percentage of candidates that have scored EQUAL TO OR BELOW (same or lower raw scores) that particular Percentile in that examination. Therefore the topper(highest score) of each session will get the same Percentile of 100 which is desirable. The marks obtained in between the highest and lowest scores are also converted to appropriate Percentiles.
The Percentile score will be the Normalized Score for the examination(instead of the raw marks of the candidate) and shall be used for preparation of the merit lists. The Percentile Scores will be calculated up to 7 decimal places to avoid bunching effect and reduce ties. The Percentile score of a Candidate is calculated as follows:
100 X Number of candidates appeared in the 'Session' with raw score EQUAL TO OR LESS than the candidate _____________________________________________________ Total number of the candidates appeared in the ‟Session"
Based on this principle, learned Counsel for the petitioners contended that Normalization Procedure/Technique is the best procedure to give fair opportunity to the meritorious candidates appeared for the examination in all sessions, and to select meritorious candidates for the posts of Secondary Grade Teachers.
Normalization Procedure/Technique, though fair in all respects, when the notification itself indicates the procedure to be adopted for 43 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 selection i.e., merit on the basis of marks scored in TET-cum-TRT, the same cannot be ignored totally Learned Counsel for the petitioners placed on record the notification issued by JNTU Hyderabad for conducting Telangana State EAMCET, 2019 where Normalization Procedure/Technique is accepted for admitting the students based on merit. Similarly, same is the case with Andhra Pradesh EAMCET also. Annexure-V of AP EAMCET Notification dealt with Normalization Procedure/Technique which is as follows:
"What is Normalization?
Normalization, as used in Indian context, is a process for ensuring the students neither advantaged nor disadvantaged by the difficulty of examinations conducted in multiple sessions. This process is based on a simple formula which has been adopted as recommended by the experts from reputed educational institutions at all India level and Universities. The process is being implemented in other all India / Nationwide entrance tests for admission into undergraduate and graduate professional courses. Normalization process ranks all the candidates across all sessions on a comparative scale. In any normalization process, the marks of the easier session may be reduced marginally and the marks of the harder paper may increase marginally on the global level, depending on the average performance in each session. If there is no much difference in the averages between two sessions then there won't be much difference in the normalized marks as well. Normalizing marks would justify the candidates while protecting their actual performance. EAMCET marks Normalization Process: The main aim of the normalization is to justify the candidates who got a difficult paper compared to an easier paper. Hence, the task is to rationalize in a best possible sense and rank the candidates based on the global performance. Various national level examination bodies like JEE (Main), GATE etc. are currently adopting such Normalization Procedure/Techniques. Correspondingly, EAMCET committee has deliberated extensively and decided to use the following Normalization Procedure/Technique.
Normalized Marks of the candidate = GMS + (Top Average Global-GMS) x (Marks obtained of the candidate -SMS) (Top Average Session -SMS) SMS:(Average + Standard Deviation) of the session in which the candidate belongs to GMS: (Average + Standard Deviation) of all the candidates across all sessions together Top Average Session: Average marks of the top 0.1% of the candidates in the session in which the candidate belongs to Top Average Global: Average marks of the top 0.1% of all the candidates across all sessions Together"
Though the learned counsel for the petitioners made an endeavour to convince the Court about Normalization Procedure/Technique, more 44 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 particularly, fair process of selection, there is no dispute as to Normalization Procedure/Technique for selection of candidates for various posts. Since the Normalization Procedure/Technique is new to most of the Testing Agencies and more particularly in the State of Andhra Pradesh, I find it appropriate to advert to the genesis of the Normalization Procedure/Technique and various committees appointed by the Government of India which laid down certain guidelines for Normalization Procedure/Technique to be applied in the process of selection.
Since 'Normalization Principle/Technique' is not based on any statute and it is evolved by Joshi Committee and others, it is appropriate to trace the genesis of 'Normalization Principle/Technique'.
Dr. Wolfensberger first gained prominence by his teaching and promotion of the principle of normalization. Normalization originated in the Scandinavian countries in the late 1960s, and was first applied only to mentally retarded people. Its 1969 formulation by the Swede Bengt Nirje called for "making available to the mentally retarded patterns and conditions of everyday life which are as close as possible to the norms and patterns of the mainstream of society." This simple statement was ground-breaking, considering the profoundly abnormal conditions of life that then prevailed for mentally retarded people, and most especially in institutions for them. These places tended to be quite big, congregating together large numbers of people with all sorts of maladaptive behaviours; located in bleak settings far from their families or any population clusters, with barren buildings and virtually no meaningful or productive occupation for their residents. The people who lived in them ended up virtually cut off from ordinary society, and often died there in obscurity. Once Dr. Wolfensberger had been exposed to the idea of 45 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 normalization, and once he had visited the Scandinavian countries and seen the services there that were based on normalization, he embraced the principle and began to write and teach about it to North American audiences. Normalization was taught as having two dimensions, one of interaction and one of interpretation.
At first Mikkelsen and Nirje both formulated the normalization principle by referring to persons with mental retardation. According to Nirje, "Normalization means making available to the mentally retarded patterns and conditions of everyday life which are as close as possible to those of the mainstream of society." Nirje elaborated the definition by applying it to all persons with disabilities. He elaborated the concept as "Normalization means making available to all the persons with disabilities and other handicap patterns of life conditions of everyday living which are as close as possible to or indeed the same as the regular circumstances and ways of life of society. Wolfensberger defined Normalization as "utilization of means, which are as culturally normative as possible in order to maintain and / or establish personal behaviour, and characteristics, which are as culturally normative as possible". As distinguished from Nirje's definition, which emphasizes normalization as a means, Wolfensberger's definition emphasized both means and goals. In Wolfensberger's reformulation, the goals of normalization have two dimensions:
a) Client normalization: To increase the functional independence of retarded persons so that they may be more easily assimilated in the community.
b) Environmental normalization: To modify environmental structures in order that individual differences among retarded persons can be accommodated into the community Nirje or Wolfensberger defined as normalization principle is based on the ideas of Nirje's paper, "Normal rhythms of life" presented at the
46 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 first IASSMD (International Association of Scientific Study of Mental Deficiency) conference held in Montpellier, France, in 1967. Nirjie's paper explains Normalization in terms of Normal Rhythms of Life. He described Normal Rhythms of life in eight facets. According to Normal Rhythm of Life, Normalization means opportunities:
1. To have a normal rhythm of the day (e.g. awakening, eating and retiring at a regular time)
2. To experience a normal routine of life (e.g. living in one place, working, attending school, and playing in other places)
3. To experience normal rhythm of the year (e.g. holidays, special family days).
4. To undergo normal developmental experiences of life cycle (e.g. family living, schooling, employment)
5. To express one's choices, wishes and desires.
6. To experience respect and heterosexual relationships.
7. To live according to normal economic standards.
8. To live according to normal physical settings Normalization principle in its various interpretations is a social science theory that has had a profound positive effect on the lives of the people who were removed and segregated from the society due to their disabilities. It remains relevant in the 21st century in improving the quality of life of persons with disabilities. Normalization principle implies greater freedom and opportunities for satisfying the personal needs which persons with disabilities now can see within the small group. The conclusion one can draw is that normal patterns and condition of everyday life are possible when the person has access to services available in the community. The basic principles underlying the concept of normalization will remain as a guideline for service development for persons with disabilities in 21st century too. The soul of normalization principle - the normal rhythm of life - strongly advocates 'equality' in the living conditions and so in education.
A committee chaired by Prof. S.K. Joshi, predominantly called as Joshi Committee, submitted a report to the Ministry of Human Resource 47 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Development, New Delhi on Normalization Approach for +2 Marks Across Various Boards - Validation and Refinement, Inclusion of Board Marks and its Normalization Admissions to several well established institutes of higher learning in India are very competitive with selection ratios ranging between 1:100 and 1: 20. Since the school board examinations vary in their standards, the higher education institutions have traditionally used an additional examination called an entrance examination, to overcome the difficulties of preparing a common merit list for admissions to their institutes. The student, unsure of which institution he or she will get admitted, tries to appear for several entrance examinations. This puts a huge stress on students as well as on schools and society. In order to boost the prospects of better performance in the entrance examination, the student often neglects the school education with more focus on coaching classes. In general it is felt that since the school board performance is not taken into account during admission of students to different professional courses, the schooling system is not able to enforce and improve standards. It is well accepted that entrance examinations should be designed and conducted to evaluate the scholastic level as well as aptitude of a student for the course in which he or she wishes to pursue the higher studies. But it has been observed that besides proliferation of entrance examinations, the preparation work required by students for these examinations has also increased considerably due to level of competition and diverse nature of such entrance tests. The school system is the backbone of Secondary education. Any student transiting from the secondary system should have a good performance for being eligible to enter the tertiary system. In order to inter-alia address the above issue, the MHRD, Govt. of India had constituted "Ramasami Committee" on "Examination and Admission System in Engineering 48 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Programmes". The report submitted by the committee suggested that if the performance of a student is taken into account in "percentile" form as compared to the actual "percentages" of marks then it is possible to compare the student performance across different boards.
After elaborate consideration of the material in consultation with Indian Statistical Institute, found out various assumptions and difficulties in accepting various methods.
After considering various assumptions it was decided to attempt and finalise a method which is workable / practicable in the given set of conditions. Differing views on the method are possible, and some may find a slightly different method more reasonable. However, in the opinion of the committee, the recommended approach is the best under the present circumstances and one can expect to make it more robust based on the experiences gained in future years. Hence, it is essential that in the interest of clarity and operability, the approach be publicised amongst the stakeholders well in advance through public discourses in the form of standard presentations, media coverage and blogs etc. Further the CBSE, who is going to conduct JEE-Main, should also be requested to constitute a Core Group for Normalization and its implementation mainly focussing on the following aspects.
1. Data Collection: All data collected should be in the standard formats designed by the group.
2. Nature of Data: The boards should be asked to submit subject-wise/aggregate marks data in respect of all the students who have Physics, Maths, language, elective and any one of Chemistry, Biology, Biotechnology and Computer Science.
3. Validation of Data: The group should evolve methods to cross check the accuracy and the nature of data supplied.
4. Timeline for Data Collection: The results should be submitted in a given time frame as decided by the Core 49 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 group at CBSE. Results of re-evaluation or the re- examination cases, if any, should also be delivered in the prescribed time limit. In the absence of such results (corrected ones), the available results should be considered to be valid for all practical purposes including that for generation of merit lists.
5. Data Processing: Normalizing the marks and making the stakeholders aware of the processes and its outcome. With regard to normalization of marks in multi session examination, when a test is conducted in several sessions using distinct question papers, normalization of scores is required to have a fair assessment of the candidates. Several selection tests nowadays are conducted in multiple sessions (using multiple choice questions). Various normalization schemes used in India when an examination involving multiple choice questions is conducted across various session are discussed through simulation, that the "percentile-based normalization"
scheme outperforms all the other schemes.
Over the last decade, some of the tests are administered via computers - candidates read the questions on a computer terminal and give their answers using mouse and keyboard, which are instantly captured in a database. This method has obvious advantages. It removes the need for printing large number of question papers and sending them to various centres, thus reducing the chances of foul play. However, one limitation this brings in is that it puts an upper bound on the number of candidates that can appear in a test, as there is need of as many computer terminals as there are candidates. If the number of candidates is much larger than the number of computer terminals available for administering the test, the way out is to create two or more (as many as required) question papers. Candidates are divided in groups so that each 50 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 group can be administered the test in one time slot and for each group, a distinct question paper is used. The institution or the entity conducting the examination tries to ensure that the different question papers are of a same level of difficulty. In practice, however, this is difficult to achieve. If a question could be used on multiple occasions, the difficulty level could be estimated statistically based on the earlier occasions when it was used. The same is followed in examinations such as GRE, TOEFEL, etc. where the questions are chosen out of a question bank and then suitable methods such as Item Response Theory (IRT) are used to get the final score of each candidate. In most examinations, a question once used in a test is not used again, thus ruling out Item Response Theory. Thus, the only way to assess the difficulty level of each question is using the opinion of experts. However this does not ensure that all question papers have the same level of difficulty as the perception of experts about difficulty levels is subject to judgemental errors. The question then arises as to how one can compare the performance of two candidates who have appeared for the examination in two different shifts and answered two different sets of questions. This is done by normalizing the marks of candidates in different shifts by putting them on a common scale in such a way, that makes them amenable to comparisons. These normalized marks or scores are then used to rank the candidates for selection for admission or job, or for further screening. For this, the candidates are assigned randomly to different sessions or time slots, so that, merit is equally distributed across these sessions. Thus, the marks in one group are more than that in another group, it can be concluded that this is mainly due to difference in difficulty levels. Thus to be fair to the candidates and to select the best candidates from among the applicants, 51 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 some correction needs to be applied. This is achieved by normalizing the marks.
Various methods are used in practice for normalization of marks.
These involve transformations of the raw scores, or the actual marks secured by the candidates. These transformations are typically based on some statistical quantities - like mean, standard deviation, percentiles, etc. of the scores in that shift or that of a subset of this dataset. The results of the transformation will give normalized scores which then can be used to rank the candidates across the different shifts. It has been observed in few cases that the selected candidates were dominated by those appearing in one or two sessions while some sessions were highly under represented and the discrepancy was in higher level. Thus, question as to which is the right method of normalization arose. Different normalization methods will give different rankings of the candidates. Few Normalization Schemes are discussed below to elucidate as to which is the best method.
In the description below, assuming that there are k question papers (administered in k distinct time slots), denoted by Gi the set of candidates who answered the ith question paper. We describe four methods of normalization in this section and compare them in the following section.
z-Score method:
One of the most commonly used methods of normalization is to transform the score using mean and standard deviation. For every group Gi, the mean marks µi and standard deviation of marks σi among all the candidates in the group Gi are calculated. The marks s of a student in the group Gi are transformed to Ti(s) by the transformation.
52 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 T1(s) = µ*+ (s-µi) σ*/ σi Where µi,and σi are the mean and standard deviation of the marks of candidates in the ith group and µ*= max. Thus for a candidate with raw score S and belonging to the group Gi, his/her normalized score is Ti(S). The normalized scores of all candidates are taken together to generate the ranks or merit list. This formula has an advantage that the normalized score of each candidate is larger than or equal to his/her raw score. However, the normalized score can be higher than the maximum score.
Other choices of µ* and σ* are also used; for example, σ* could be the standard deviation in the group with highest mean. It can be seen that the ranks (or the merit list) produced by different choices of µ* and σ* are the same. Indeed, denoting by Ei(s) = (s- µi)/ σi w-Score method The standardization using example is perhaps motivated by the belief that when there are a large number of candidates in each group, the distribution of marks in each group would be normal and the standardization via eq. (1) would transform them to the same distribution, namely standard normal distribution. Looking at scores of several examinations with a large number of candidates we have seen that in most situations, the distribution of marks is far from normal - the deviation is maximum in the tails of the distribution. In cases where the examination is to be used for selection, the interest is in the candidates whose scores are in the top few per cent or the upper tail of the score distribution. In view of this, another method considered is as follows:
suppose the top 1% candidates are to be selected. Then let 53 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Fi(s) = (s- Ei)/ θi g-Score method Another method currently being used in India, including for GATE and CAT, is the following subsequently called the g-score method. Here the normalized score is given by Mi(s) = ά + (s- ά) (β- ά) / (β- άi) p-Score method Here, instead of the transformation by mean and standard deviation, the percentile score in each session is taken as the standardized score. This has an advantage as it does not assume any specific form of the distribution of marks. It does not even require that the distributions across the groups be the same. It should be noted that when the data have ties (which is invariably the case when we have data on scores of a large number of candidates), the ranks are not uniquely defined and each statistical software has its own default method. Thus the method to resolve the ties has to be specified by the end-user. In the context of normalization, it makes sense to assign equal score to the toppers in all the shifts. This is achieved by defining the standardized score Pi(s) corresponding to a score s of a candidate in the group Gi as follows:
Pi(s) = Yi(s)/λi The standardized scores can then be transformed to a suitable scale, in the same range as the raw scores, or between 0 and 100. The transformation of standardized scores to normalized scores is via one fixed increasing function so that the ranks based on standardized scores are the same as those based on normalized scores. This has a 54 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 psychological aspect - candidates are upset if the normalized score is less than their raw score, but are satisfied if it is more. However, if only ranks matter, then only standardized score matters and the final transformation to convert to normalized score is not important. The choice of transformation is important if the normalized score is used, over and above the ranks, for any decision making, say, when it is combined with a score in the interview to generate the final ranking.
Normally on the issue of direction for following Normalization Procedure/Technique, the variation must be more and minimum variation between two sessions will not afford a ground to issue a direction for following Normalization Procedure/Technique. National Testing Agency and other Governmental Agencies are following percentile method. But, in the present facts of the case, I do not propose to issue a direction to the Respondents to follow Normalization Procedure/Technique based on percentile method or any of the methods stated above, for the simple reason that absolutely no data is placed on record to establish that there is substantial variation of marks secured by candidates in different sessions. That apart, the second respondent while issuing notification prescribed certain procedure for valuation of the papers to find out the merit i.e., Clause 17(v) of G.O. Ms.No.67, dated 26.10.2018. When once a specific procedure is specified in the notification itself for valuation of papers, referring G.O.Mas.No.67, dated 26.10.2018, the procedure adopted by the second respondent for valuation of papers cannot be faulted. If no such procedure for valuation is prescribed then, there is possibility for issuing a direction to follow the procedure of Normalization or Standardization, more particularly when examination was conducted in multiple sessions.
55 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Learned Counsel for the petitioners contended that even though the Normalization method of valuation is not mentioned in the notification, that can be adopted by the second respondent to select the candidates for the post of Secondary Grade Teachers.
Learned counsel for the petitioners placed reliance on the judgment of Apex Court in Mahinder Kumar & Ors. v. High Court of Madhya Pradesh Through Registrar General & Ors (7th cited), wherein, in the selection of District Judges by the High Court of Madhya Pradesh adopted normalization principle, though the notification does not refer about application of Normalization Principle while deciding the merit of each candidate. The Supreme Court held that, though Normalization Procedure/Technique is not mentioned in the notification issued for selection of District Judges, adopting such Normalization Procedure/Technique while selecting the candidates is upheld on the ground that Rule 7 of Madhya Pradesh Higher Judicial Service Rules permit the High Court to adopt any procedure for selection of the candidates. The facts of the judgment are distinguishable with the facts of the present case. In the facts of the present case, specific mode of selection is prescribed under Clause 17(v) of G.O.Ms.No.67 dated 26.10.2018 to determine the merit of the students for selection of candidates for the purpose of Secondary Grade Teachers. If the notification is silent as to the method of selection, the contention of the learned counsel for the petitioners for application of Normalization Procedure/Technique can be accepted.
Learned counsel for the petitioners has drawn attention of this Court to the judgment of Supreme Court in Sanjay Singh & Anr v.
56 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 U.P.Public Service Commission, Allahabad & Anr.36, where an identical question came up for consideration, wherein the Apex Court observed as follows:
20. We cannot accept the contention of the petitioner that the words "marks awarded" or "marks obtained in the written papers" refers only to the actual marks awarded by the examiner. 'Valuation' is a process which does not end on marks being awarded by an Examiner. Award of marks by the Examiner is only one stage of the process of valuation.
Moderation when employed by the examining authority, becomes part of the process of valuation and the marks awarded on moderation become the final marks of the candidate. In fact Rule 20(3) specifically refers to the 'marks finally awarded to each candidate in the written examination', thereby implying that the marks awarded by the examiner can be altered by moderation.
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 heterogeneous 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." 36 AIR 2007 SC 950 57 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 But, in the present case, no moderation is given to different candidates who appeared in different sessions based on difficulty level of the question paper. While answering, Question No.(iii), regarding application of 'Scaling System', the Apex Court made certain observations and the same are extracted hereunder:
"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) ....
(ii) ...
(iii) ...
(iv) ...
(v) .....
(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.
58 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Finally, at the end of Paragraph No.24, the Apex Court held that, 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.
The principle laid down in Sanjay Singh & Anr v. U.P.Public Service Commission, Allahabad & Anr (36th cited) is of no use to the present facts of the case to uphold the contention of the learned counsel for the petitioners.
Learned counsel for the petitioners Sri Vijay Kumar Motupalli further relied on judgment of the Supreme Court in Ludhiana Central Cooperative Bank Ltd. V. Amrik Singh and Others37, where selection process for appointment of certain employees in Ludhiana Central Cooperative Bank Limited was questioned. The Apex Court held that, The whole process appears to have been not only perfunctory but really a farce of selection vitiated by award of indiscriminate marks to boost up candidates of choice and unreasonably put down others in utter disregard and derogation of the binding guidelines. Indisputably, the power to appoint is vested in the board of directors of the appellant-bank under the by-laws and the constitution of a Committee for the selection of candidates by conducting tests and interviews cannot clothe the said committee with also powers to finalise the same without the approval of the board and/or either declare the results of selection on their own or 37 (2003) 10 SCC 136 59 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 appoint persons pursuant to such selections without reference to the board. There is a serious claim by the appellant-bank, that the assessment of candidates appear to be in gross violation of the binding circular orders of the Registrar of Co-operative Societies and the ban orders of the High Court. The High Court could not have directed the publication of results or to accord appointments as per such results, all the more in this case in the teeth of and in derogation of the circular orders of the Registrar of Co-operative Societies. The directions of the Registrar were as to what as to what should be done in all pending as well as fresh matters to ensure transparency as well as to mete out real and effective justice to all aspirants for the jobs in question, by finding a solution of its own without even looking into the records relating to the selection to satisfy itself as to the legality, propriety regularity and reasonableness of the so called selections and the process adopted by the Committee before directing action to be taken in implementation thereof. Even otherwise it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post in spite of vacancies existing. The appointing authority cannot afford to ignore individual claims at its whim or fancy, in operating such panel or making appointments on the basis of the panel, by merely 'pick and choose' of candidates. The High Court, ought to have, at any rate gone into all these relevant and vital aspects at least when serious irregularities have been brought to notice by filing a review petition by calling for production of the relevant records. The cavalier fashion in which it seems to have been rejected cannot meet with our approval, at any rate on the peculiar facts and circumstances, highlighted in this case.
60 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 No doubt, when the selection process is perfunctory and not fair, the principle laid down in Ludhiana Central Cooperative Bank Ltd. V. Amrik Singh and Others (37th cited) can be applied. But, in the present case, the examination was computer based online examination and question of any manipulations by the recruiting agency or third person does not arise in the process of selection, more particularly in the written examination. Therefore, the alleged perfunctory conduct of examination has nothing to do with the present facts of the case. that too, it was not the contention of the petitioners in both writ petitions, consequently the above decision is of no assistance to the petitioners.
Learned counsel for the petitioners relied on the judgment rendered by the Five Judge Bench of the Apex Court in Shankarsan Dash v. Union of India38, where the Apex Court held that, even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. But, I am unable to comprehend the relevancy of the above judgment.
38
(1991) 3 SCC 47 61 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Reliance was also placed by the learned counsel for the petitioners in S.S.Balu and another V. State of Kerala and Others (8th cited supra), wherein the Apex Court held that, a person does not acquire a legal right to be appointed only because his name appears in the select list. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. Furthermore, the rank list was valid for a period of three years. Its validity expired on 5.6.2000. Another Select List was published for the period from 16.9.2002 to 15.9.2005. Vacancies in terms of the said Select List have also been filled up. "delay defeats equity". Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal thereagainst, they impleaded themselves as party respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.
On close verification of the principles laid down in the above judgments, I am of the view that, none of the principles have direct application to the present controversy in the matter.
Learned Senior Counsel Sri A. Satya Prasad appearing for the unofficial respondents contended that the principle of Normalization cannot be applied when G.O.Ms.No.67 dated 26.10.2018 itself specified the procedure for selection and placed reliance on the judgment of 62 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Panjab University and another v. Ashwinder Kaur (20th cited supra), wherein the criteria for admission into P.G. Diploma and other courses came up for consideration and the Punjab and Haryana High Court concluded that, when the university regulations specifies the specific procedure for selection of meritorious candidates, that competent authority can lay down higher qualifications than minimum prescribed for admission and awarding by giving preference to anyone is in accordance with law and finally held that normalisation of marks had to be both of minimum qualifying examination as well as of higher qualifications.
The High Court worked out the marks without normalization or after normalization. But, here, it is difficult to work out the average marks of the candidates both without normalization and after normalization, since the marks secured by the candidates are not placed before this Court.
In Rajasthan Public Service Commission v. Ramesh Chandra Pilwal (21st cited supra), the Rajasthan High Court explained the Principle of Normalization in detail. Paragraph No.18 of the judgment and the questions framed therein are relevant for the purpose of deciding this issue as adjudication of technique of Normalization and Moderation in the examination conducted by the Rajasthan Public Service Commission when the scheme has already been approved by Division bench of the Rajasthan High Court. The Rajasthan High Court held that, The concept of moderation/normalisation and scaling has been explained in the Book 'Scaling-Techniques-What, Why and How' written by V. Natarajan and K. Gunasekaran, wherein the authors have expressed the view that the traditional system of examinations has been criticised equally by 63 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 teachers, administrators, students and the public, with the result reforms have been introduced in the system of examination. Through the book, an attempt has been made to introduce a procedure for scaling to deal with such misconceptions of marks and self-tradition of marks reporting. In India the scaling technique has been adopted for the first time by the Guwahati University in 1963 by Dr. H.J. Tailor, the then Vice-Chancellor. This system has been introduced whenever and wherever the situation so warrants. If different sets of marks are to be added and/or to be compared, they need to be scaled to a common standard where such standard is lacking. The matter of scaling can be applied to mass-conducted public examinations whose results matter to thousand of students. The word 'scaling' means the adjustment of marks to a common standard. It gives a better result where scripts are randomised, though, it has been mentioned in the book that this technique of sea-line has been shown to be practicable in a major examination covering more than 33000 candidates. But, this figure was only an illustration. It does not give any reason for fixing this cut of figure of 33000. Traditional concept of scaling and various methods of scaling allowing the scientific procedure to be adopted is contained in the said book. Though, the Union Public Service Commission has adopted this technique since long but the Rajasthan Public Service Commission has adopted it for the first time in the year 1993 which was challenged before a Division Bench in the case of Mahesh Kumar Khandelwal (supra). The High Court while considering the application of that technique has expressed the view that if large number of candidates had taken various optional papers with different standards and different varieties of scorabilities the need of moderation/standardisation became a must. The concept of moderation and normalisation has already been 64 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 considered and accepted in the case of Mahesh Kumar Khandelwal v. State of Maharashtra39. Reference was made to the judgment The Supreme Court in Surjit Kumar Dass v. Chairman, U.P.S.C40 held as follows:
"Thus we hold that:
(1) The writ petition was not maintainable as a Public Interest Litigation;
(2) Allegations of bias and favouritism have not been established;
(3) The Chairman has committed no illegality in applying the technique of moderation in the examination; (4) The learned Single Judge was not correct in holding that the technique of moderation could be made applicable only in those examination where the number, of candidates, is 33000 or more;
(5) The scrutiny regarding the application of the technique of moderation is beyond the power of judicial review of the High Court as the decision has been taken by an expert body conducting the examination, more so when it has been done by a Constitutional Authority against which no malafide could be established."
In State of Maharashtra v. Ravindra Kumar Rai (22nd cited supra), admission into medical college, common entrance test for admission to medical/dental colleges in State of Maharashtra came up for consideration and the Apex Court permitted the State of Maharashtra to proceed with admission to medical/dental colleges in the State for the year 1998 academic session in accordance with the system which was being followed by the Government of Maharashtra so far, namely, on the basis of marks secured in the qualifying examination subject to the condition that for the purpose of making a comparative assessment of the merit of the students who have passed the qualifying examination by different Boards, the State Government shall follow the normalization process as adopted by the Birla Institute of Science and Technical 39 1994 (1) RLR 533 40 Special Leave Petitions No. 14000 and 15251 of 1986, decided on 11.3.1987 65 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 Education, Pilani for such comparative assessment. Accordingly, they modified the directions contained in the Ravindra Kumar Rai v. State of Maharashtra dated 27.02.1998.
In Disha Panchal and others v. Union of India, through the Secretary and others41, principle of Scaling and Moderation came up for consideration before the Apex Court in Common Law Admission Test (CLAT) examination. The Apex Court held that, there is no need to annul entire examination process of Common Law Admission Test. Normalization formula suggested on basis of statistical data about actual loss of exam time and answering efficiency of candidates. In the facts of the case, there was a technical problem in the online examination and they could not utilize the time allotted for answering the questions on account of such technical problem. Therefore, such procedure was directed to be followed. But, in the present case, it was not the case of the petitioners that there was any loss of time on account of technical problem.
But, in the present case, there is absolutely nothing on record to verify whether any such variation from session to session, not marginal, to apply "Normalization Procedure/Technique" though not Scaling or Moderation. Thus the petitioners failed to prove the substantial variation in the marks secured by the candidates in different sessions.
On overall review of the law laid down by various Courts and the Principle of Normalization, it is difficult for me to issue a direction to the second respondent to follow either the Principle of Normalization or Scaling or Moderation, for the reason that, in the notification itself, it is made clear that eligibility criteria, percentage of reservation and method 41 (2017) 17 Supreme Court Cases 278 66 MSM,J W.P.No.15355 of 2019 & W.P.No.2368 of 2020 of selection is based on G.O.Ms.No.67 dated 26.10.2018. Clause 17(v) of G.O.Ms.No.67 dated 26.10.2018 laid down the guidelines that the selection process is strictly on merit basis, taking into consideration of the marks secured in TET-cum-TRT. When a specific method of valuation is prescribed in G.O.Ms.No.67 dated 26.10.2018, the method of valuation for selection of candidates for being appointed as Secondary Grade Teachers cannot be faulted in the absence of any bias etc. attributed to the second respondent. It is for the expert body to decide the method of valuation for preparation of final selection list. This Court cannot exercise power of judicial review under Article 226 of the Constitution of India to issue a direction to follow Normalization principle, more particularly when a specific procedure for valuation is prescribed by G.O.Ms.No.67 dated 26.10.2018. At best, the aggrieved person(s) may challenge relevant clause(s) in G.O.Ms.No.67 dated 26.10.2018 and in the absence of challenge to G.O.Ms.No.67 dated 26.10.2018, this Court cannot issue such direction to change the method of valuation for preparation of final selection list. Hence I find no ground to issue a direction as sought for by the petitioners in the writ petitions and consequently the writ petitions are liable to be dismissed.
In the result, writ petitions are dismissed. No costs. Consequently miscellaneous applications pending if any, shall also stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.09.2020 Note: LR copy to be marked Sp