Rajasthan High Court - Jaipur
Jai Singh &Ors vs State Of Raj And Anr on 21 December, 2010
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE OF RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: 1. D.B. CIVIL WRIT PETITION NO.12924/2009 Jai Singh & Ors. Vs. State of Rajasthan & Anr. 2. D.B. CIVIL WRIT PETITION NO.13479/2009 Bhavnesh Kumar & Ors. Vs. State of Rajasthan & Anr. 3. D.B. CIVIL WRIT PETITION NO.14221/2009 Nopa Ram & Ors. Vs. State of Rajasthan & Anr. 4. D.B. CIVIL WRIT PETITION NO.14263/2009 Narendra Kumar Vs. State of Rajasthan & Anr. 5. D.B. CIVIL WRIT PETITION NO.14388/2009 Vinod Kumar Gupta & Anr. Vs. State of Rajasthan & Anr. 6. D.B. CIVIL WRIT PETITION NO.15475/2009 Dinesh Kumar Sharma & Ors. Vs. State of Rajasthan & Anr. 7. D.B. CIVIL WRIT PETITION NO.1735/2010 Shakti Singh Hapawat & Ors. Vs. State of Rajasthan & Anr. Date of Order : 21st December, 2010 P R E S E N T HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sanjeev Prakash Sharma, Mr. Ashok Gaur, Mr. Rakesh Sharma, Ms.Shefali Sharma, for the petitioners. Mr. S.N. Kumawat, Additional Advocate General, Mr. Alok Sharma, for the respondents.
Mr. R.N. Mathur, Mr. Rajendra Soni, for the intervenors.
1. In these writ petitions a common question has been raised as to whether the Rajasthan Public Service Commission could have resorted to the method of scaling of the marks in Combined Competitive Examination for State and Subordinate Service, 2007(hereinafter referred to as 'the Combined Competitive Examination, 2007') which has been held under the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1999 (hereinafter referred to as 'the Rules of 1999')?
2. On 1.6.2007, advertisement was issued for 155 posts of seven State Services and 526 posts of Subordinate Services. Posts have been increased subsequently to 713 in total. On 23.12.2007, preliminary examination was conducted in which approximately 3 lacs candidates appeared. Result of the preliminary examination was declared on 13.3.2008. After declaration of the result, 15 times to the number of vacancies i.e.11,726 candidates were allowed to appear in the main examination.
3. It is not in dispute that there were 37 optional subjects and 4 compulsory papers. There were 74 question papers in optional subjects and 4 compulsory papers. Thus, there were 78 papers in total. From 30.7.2008 to 25.8.2008, the main examination was conducted in the aforesaid subjects. Before declaration of the final result on 17.3.2009, the Commission held meeting of various experts whether it was proper to apply the scaling system. Experts had reviewed the method of scaling of score/marks obtained by examinees and discussed Ad longtum as also perused the proceedings of Standing Committee held on 2.2.2009 and resolved to implement the scaling method to remove variation in examiners as well as subjects. Subject-wise scaling has been resorted to in the optional subjects, whereas in four compulsory papers and 33 optional subjects only examiner-wise scaling has been adopted. There were 385 examiners in all. After scaling, result of the main examination was declared and 2679 candidates were called for interview. The excess number of candidates were called for interview to bring Other Backward Classes (OBC) candidates at par with the General Category candidates as per the decision of this Court in Bhawani Singh Kaviya & Ors. Vs. State of Rajasthan & Anr.(SB Civil Writ Petition No.2307/2008 decided on 13.5.2008. In the main examination, last cut-off marks of the OBC was more than the General Category, hence to bring the candidates of OBC Category at par with the General Category, those OBC candidates who had obtained the marks equivalent to cut-off marks of General Category candidates were also called for interview.
4. With effect from 1.6.2009 to 9.9.2009, interviews of 2678 candidates was conducted. Thereafter, final result was declared on 9.9.2009. Names were recommended to the State Government, as per choice, on 20.10.2009.
5. The petitioners have canvassed that one Ms.Mamta Tiwari was at rank No.1 with raw marks 849 and on scaling, her marks were reduced by 15. Thus, by applying the method of scaling she has been placed at Serial No.9 in the merit. Another shocking example is of a candidate who secured 838 raw marks and was 3rd in ranking as per raw marks but her marks were reduced by 71 and placed at general ranking at No.194. Ranking of a person as per raw marks at No.13 has been reduced to 283 after scaling. A person who had 52 ranking on the basis of raw marks, after scaling was placed at No.5 and so on. Thus, absurd results have occurred due to the application of scaling method. Petitioners have submitted certain data in the petition indicating as to how scaling of marks caused anomalous results. It is also averred that in the case of one Ms.Sunita Meena, who is perhaps the relative of Shri H.L. Meena, Member, Rajasthan Public Service Commission, wrongful scaling was done. The children of close friends and relatives have been given benefit not only in scaling but at the level of interview too. One Narendra Choudhary, relative of Shri C.R. Choudhary, Chairman, Rajasthan Public Service Commission has also been given benefit of increase of marks from 726 to 792. Thus, the examination conducted by the Commission is in a cloud of doubt.
6. It is further submitted by the petitioners that the scaling system is wholly defective and illegal. Scaling of marks is required to be done only when there are large number of candidates appearing in the examination. The combined mean of all examiners and combined mean of all subjects are two different variants. Standard deviation of the examiners would be different in different subjects. It is not known as to which formula was applied causing shocking results. Rules of 1999 do not allow any kind of scaling. Rule 15 lays down the Scheme of Examination, Personality and Viva-Voce Test. There are certain combination of subjects which cannot be opted together such as Mathematics and Statistics; Agriculture and Animal Husbandry & Veterinary Science. Even it was not permissible to go for scaling in the aforesaid subjects and then apply the mean of the subjects. Reliance has been placed upon the decision of the Apex Court in Sanjay Singh & Anr. Vs. U.P. Public Service Commission, Allahabad & Anr., (2007) 3 SCC 720. In compulsory papers, examiner-wise scaling could not have been resorted to; in case of difference, moderation is the answer. When under the Rules of 1999, no provision has been made to apply scaling, it could not have been resorted to and thus the action of applying scaling is beyond the powers of the Commission. Scaling technique could not have been applied even in optional subjects as scaling has created anomalous results, and thus, the final result so declared by the Commission be quashed and the Commission be directed to declare the result on the basis of raw marks obtained by the candidates without taking into consideration the scaled and interview marks.
7. The respondents, in their reply, have contended that the recommendation of the Commission is based on aggregate marks finally awarded to each candidate as per the scheme of examination provided under Rule 15 of the Rules of 1999. Scaling system has been approved by the Apex court in Mahesh Kumar Khandelwal & 16 Ors. Vs. State of Rajasthan & Ors., 1994 (1) RLR 533; Rajasthan Public Service Commission Vs. Ramesh Chandra Pilwal, RLW 1997(2) Raj.1348 and in the matter of Manish Sinsinwar & Ors. Vs. Rajasthan Public Service Commission & Anr. (D.B. Civil Writ Petition (PIL) No.368/2004 decided on 14.6.2004). In scaling system, many examiners are involved in marking the answering scripts relating to a subject; in different languages the answers are given i.e. English and Hindi. Seven areas have been specified where scaling can be applied. Decision has been taken in consonance with those principles. After completion of main examination of 37 heterogeneous subjects having first and second papers, the evaluation was done with the help of several examiners as per the number of answer scripts, therefore, examiner code had been separately awarded. The subject mean and standard deviation are having much deviation, hence, to bring common mean and common standard deviation adoption of scaling system was necessary as held in the meeting dated 2.2.2009 and thereafter meeting of Experts was held on 13.3.2009 for application of the scaling technique.
8. A chart was placed before the Experts relating to variant subjects mean and standard deviation etc. Unanimous recommendation was made to apply the scaling principles as enumerated by V.Natarajan and K. Gunasekaran in their book. Considering the large number of examiners and subject variation, scaling was found to be appropriate mode to arrive at a just result. The combined mean of all examiners, the examiner subject mean, pooled standard deviation of all examiners and standard deviation of the subjects concerned had been applied as per formula. Formula has been approved by this Court in Mahesh Kumar Khandelwal Vs. State of Rajasthan, 1994(1) RLR 533 against which SLP was dismissed by the Apex Court.
9. It is further contended that Ms.Sunita Meena is not at all in relation of Shri H.L. Meena, Member, Rajasthan Public Service Commission nor Shri H.L. Meena had participated in the interview; even Shri Meena was not a member of the Interview Board. Other averments have also been denied. Allegations levelled are baseless. No nepotism or favouritism has been done. Even as per the decision of the Apex Court in Sanjay Singh (supra), scaling is permitted in such exigencies. Examination in Sanjay Singh (supra) was for judicial service where the question papers were common, thus the facts of the instant case are different. No case for interference is made out.
10. In the rejoinder filed by the petitioners, it is contended that there was no necessity for applying scaling technique in four subjects as there were less than 100 candidates who appeared in the examination, thus the number of examiners could not have been more than one in each paper. Moreover, these papers as per the Rules of 1999 are such where candidate could have only opted for one of the said subjects. Thus, application of the scaling was bad in law. The formula is ineffective and defective.
11. Shri Sanjeev Prakash Sharma, Shri Ashok Gaur, Shri Rakesh Sharma and Ms.Shefali Sharma, learned counsel appearing on behalf of the petitioner, submitted that scaling technique was applied without any basis. Scaling could not have been resorted to in view of the decision of the Apex Court in Sanjay Singh (supra), scaling in compulsory papers could not have been resorted to as the formula has not been correctly applied. In the set of papers which could not be opted together, it was not permissible to apply scaling. The Commission had committed illegality in increasing the zone of consideration by reducing the cut-off marks for the OBC Category candidates. Certain candidates have been given higher marks in scaling as well as in the interview. It is a case where favouritism had been resorted to in order to oblige relatives and friends. Linear method of scaling has led to anomalous and absurd results. Decision in Sanjay Singh (supra) was operative when scaling has been resorted, thus scaling done in violation of the aforesaid dictum be quashed. Under the Rules of 1999, scaling is not provided. Examinerwise scaling could not have been resorted to; at the most, moderation was the solution for variation in the marks given by the examiners. The Commission erred in applying the scaling at two levels; of examiner and another subject scaling, thus twice scaling could not have been done. The formula of Natrajan has been deviated from every angle. In the case of Rajasthan Judicial Service, this Court struck down the scaling of marks which was done; the same principle is applicable with respect to the RAS examination also. Considering 74 papers in the optional subjects of 37 subjects and number of examiners engaged, scaling was not necessary in compulsory papers, examinerwise scaling could have been done. In the optional papers where there was only one examiner, examinerwise scaling was not done.
12. Counsel further submitted that report of the experts appointed by this Court indicates that there was increase of zero marks to 50 marks and there was increase in certain cases to the maximum of 200 marks by method of scaling. The Commission illegally applied scaling where answer scripts were less than 100. The Commission could not have applied the scaling to the same subject group which could not have been opted together. It was not permissible to scale the marks of Agriculture Engineering with History by applying scaling. The Commission has appointed huge number of examiners whereas one examiner was sufficient for 300 answer scripts. This was done for treating the examiners variability in scaling for benefit of some candidates.
13. Counsel also submitted that application of scaling formula is arbitrary, irrational and without proper application of mind as well as without study by the experts.
14. Shri S.N. Kumawat, Additional Advocate General, Shri R.N. Mathur, Shri Alok Sharma and Shri Bharat Vyas, learned counsel appearing on behalf of the respondents submitted that considering large number of examiners and the fact that there were large number of optional subjects, scaling was the only appropriate solution to arrive at a just result. In case scaling was not applied, candidates opting few optional subjects by virtue of the average mean marks in the subjects would have been selected. Thus, scaling of various optional subjects was necessary so as to bring the candidates on the common scale. For various disciplines of post advertised, experts of the different subjects are required to occupy the post. Rule 17 of the RAS Rules is different from the Rajasthan Judicial Service Rules. In optional subjects where there were more than one examiner, examinerwise scaling had been resorted to in which, subjectwise scaling of the optional subjects had been applied. Decision in Sanjay Singh (supra) supports the case of scaling in a situation where there are large number of optional papers. Action is not in violation of the Rules and various decisions rendered by this Court which have been affirmed by the Apex Court. The scaling in the RAS has been upheld. Consequently, no case for interference in these writ petitions is made out.
15. The main question for consideration is whether the Commission is justified in taking recourse to the process of scaling of the marks. It is not in dispute that there were 37 optional subjects each subject having first and second papers. There were total 74 papers in addition to 4 compulsory papers. It is also not in dispute that there were 385 examiners. It is also not in dispute that the linear method of scaling was applied, as laid down by V.Natarajan and K.Gunasekaran. They have laid down the justification necessitating the adoption of scaling in para 6.2 of the recommendations, which is quoted below:-
6.2. Specific Recommendations :
The situations necessitating adoption of Scaling which are discussed earlier are presented here again to reinforce it. They are:
(1) When many examiners are involved in marking the scripts relating to a subject;
(2) When scripts relating to two sets of students, one set answering in English and the other in a regional language, have to be scored;
(3) When marks relating to different subjects are added so as to get an aggregate;
(4) When Internal and External Assessment marks are to be added and/or compared;
(5) When students' performance from different school Boards are to be equated;
(6) When marks relating to objective part is to be added with that of essay part in a paper; and (7) When candidates' performance in parallel forms of an objective paper are to be compared.
It is not in dispute in the instant case that many examiners were involved in marking the answer scripts relating to the subjects and there were different languages, English and Hindi in which answers were given. It is also not in dispute that marks relating to different subjects are to be added so as to get an aggregate. The marks of interview as well as written examination are to be added. The students were from different background or schools/board. Objective marks of the candidates were also required to be added with that of essay part of a paper and performance in parallel forms of an objective paper was also required to be compared. Thus, we find that considering large number of optional papers and optional subjects and the examiners, it was necessary to apply the scaling method to arrive at just results. If we consider subject-wise analysis for RAS Pre 2010, which indicates that in the subject of Agriculture, submean (raw) was 100.42; in Botany sub mean (raw) was 61.82; in Chemistry 65.1; in Computer Engineering 61.5; in Home Science 66.94; in Political Science 63.54; in Psychology 60.99. As compared to the aforesaid raw sub mean, the marks of other optional subjects were on extremely lower side such as Statistics sub mean (raw) was 23.47; in Public Administration sub mean (raw) was 29.14; in Mechanical Engineering 39.68; in Indian History 40.33; in Economics 33.88 etc. The subject mean after scaling had been arrived in the aforesaid subjects at 47.84.
16. Following are the figures submitted by the Rajasthan Public Service Commission of the sub mean (raw) and mean after scaling:-
RAJASTHAN PUBLIC SERVICE COMMISSION, AJMER SUBJECT WISE ANALYSIS OF STATISTICS FOR RAS (PRE.)2010 SUBCODE SUBJECT SCRIPTS SUBMEAN(RAW) MEAN AFTER SCALING 1 Agriculture 1480 100.42 47.84 2 Agriculture Engg.111
47.73 47.84 3 Animal Husb. & Vete Sc.322
43.79 47.84 4 Botany 9162 61.82 47.84 5 Chemistry 4905 65.1 47.84 6 Civil Engg.399
44.76 47.84 7 Commerce 7509 48.74 47.84 8 Crop Husb. With Horticul.729
52.22 47.84 9 Computer Engg.1429
61.5 47.84 10 Computer Science 3658 51.1 47.84 11 Dairy Proc. & Technology 174 48.65 47.84 12 Economics 4534 33.88 47.84 13 Electrical Engg.1115
52.86 47.84 14 Electronics & Telec Engg.1568
36.48 47.84 15 Geography 27775 38.77 47.84 16 Geology 423 35.37 47.84 17 Home Science 2539 66.94 47.84 18 Indian History 85018 40.33 47.84 19 Law 4920 59.99 47.84 20 Mathematics 3586 40.73 47.84 21 Mechanical Engg.749
39.68 47.84 22 Mining Engg.60
42.9 47.84 23 Philosophy 2157 43.07 47.84 24 Physics 946 59 47.84 25 Political Science 58472 63.54 47.84 26 Psychology 1834 60.99 47.84 27 Public Administration 14861 29.14 47.84 28 Sociology 14066 42.01 47.84 29 Statistics 196 23.47 47.84 30 Zoology 9193 46.37 47.84 Note:In total 13500 candidates were passed in pre examination. Scaling produced on overall average 47.84 becomes the average for individual subject also which give equal opportunity to candidates belonging to all 30 subjects. In case scaling is not adopted then among 13500 candidates approx.1/3 would be from the subject of Pol.Sc. alone, likewise candidates from Botany, Agriculture, Crop Husb. & Hort., Home Sci.,Law, Psychology etc. will be over representative as average marks of candidates in these subjects are very high, whereas candidates obtaining statistics, Geology, Geography, ETCE, Economics and the like will have very remote chance of getting through the pre examination because of a tough paper setting or a tough nature of the subject. After scaling all the subjects are put to on an equal footing with an average of 47.84 marks. It clearly establishes that scaling remove the variation due to subject (either on account of tough paper setting & tough subject).
17. It is apparent that there was variation in the sub mean (raw) of subjects. Thus, to give equal opportunity to the candidates belonging to all optional subjects, scaling was resorted to. In case scaling had not been adopted, the students of Political Science, Botany, Agriculture, Crop Husbandry and Home Science, Law, Psychology, etc. would have steal the advantage over the other students and the students having Statistics, Geology, Geography, Economics etc., would have remote chance of getting through the examination.
18. In Sanjay Singh (supra), the Apex Court has laid down in the context of judicial service Rules of Uttar Pradesh that where a large number of candidates take 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. There is difference in average marks. This apart, there is hawk-dove effect. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. At the same time, the Apex Court has observed that 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.
19. In Sanjay Singh (supra), the Apex Court also took note of the fact that in judicial service examination, the candidates were required to take the examination in respect of all the five compulsory subjects and the candidates did not have any option in regard to the subjects. Consequently, the Apex Court laid down that in such a situation, moderation appeared to be an ideal solution. The Apex Court at the same time has laid down that 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. In such a situation, candidates who have opted for easier subjects may steal an advantage over those who opted for difficult subjects. The paper-setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. Their Lordships have given examples vividly of variations so caused and the Apex Court ultimately observed that in view of the peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of the candidates who have opted for different subjects can be ascertained. The moderation will solve only the problem of examiner variability. Moderation is no answer where the problem is to find inter se merit across several subjects. Thus scaling is not arbitrary in such exigencies. The Apex Court has laid down in Sanjay Singh (supra) thus:-
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 marks 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 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 happen 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 equipercentile method are some of the recognized methods for scaling.
20. The Apex Court in Sanjay Singh (supra) has also discussed the scaling process whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as for example, the Civil Services Examination. The Apex Court, in Sanjay Singh (supra) has laid down thus:
25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their publication "Research on Examinations in India" have tried to explain and define scaling. We may usefully borrow the same. A degree 'Fahrenheit' is different from a degree 'Centigrade'. Though both express temperature in degrees, the 'degree' is different for the two scales. What is 40 Degrees in Centigrade scale is 104 Degrees in Fahrenheit scale. Similarly, when marks are assigned to answer-scripts in different papers, say by Examiner 'A' in Geometry and Examiner 'B' in History, the meaning or value of the 'marks' is different. Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the marks awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects are converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination.
21. The Apex Court in Sanjay Singh (supra) has further held that scaling is permissible when a common merit list has to be prepared in regard to candidates who have taken examination in different subjects, in pursuance of an option given to them. The Apex Court has laid down thus:
26. The Union Public Service Commission ('UPSC' for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in civil service preliminary examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer scripts are evaluated by computerized/ scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted to. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/ conventional type question papers in regard to same subject; and that scaling should be resorted only where a common merit list has to be prepared in regard to candidates who have taken examination of different subjects, in pursuance of an option given to them.
22. The Apex Court, in Sanjay Singh (supra) has also examined the reasons as to why the Commission adopted scaling instead of moderation. The Apex Court has laid down thus:
28. Let us now examine the reasons as to why the Commission adopted 'scaling' instead of moderation. The Committee states that the anomalies caused on account of 'examiner variability' was engaging its attention. It found that a candidate's score may depend upon the "chance' factor of whether his answers script is assessed by a lenient or a strict examiner; and that in an extreme case, while a candidate of a given merit may get a First Class/Division, another student of equal merit may be declared to have failed. Therefore, the Commission constituted a Committee to carry out an indepth study into the matter and suggest appropriate means to ensure that the evaluation was on more equitable basis. The Committee by its Report dated 2.9.1996 suggested statistical scaling system as the remedy and recommended the linear standard score method which operates on the following formula :
Z= Assumed mean + [ (X-M) x Assumed S.D.] SD Z= is the Scaled Score.
X = is the Raw mark.
M = is the mean of Raw Marks of the group/subject.
S.D. is the Standard Deviation of Raw Marks of the group/subject.
The Committee suggested the following 'assumptions' or 'parameters' for applying the formula :
(i) Assumed Mean will be taken as Half of the maximum marks of the group/subject.
(ii) Assumed S.D. will be taken as one-fifth of the assumed mean.
(iii) If scaled score is less than zero after scaling, then candidates will be allotted zero marks in the said group/subject.
(iv) If scaled score after scaling is more than maximum marks, then candidate will be allotted maximum marks in the said group/subject.
29. Ever since then, the Commission has been following the statistical scaling. According to the Commission, the scaling method is rational, scientific and reasonable and would lead to assessment of inter se merit of the candidates in a just and proper manner. The use of the said method was reviewed by an Expert Committee on 31.7.2000 and it was reiterated that the formula and method presently used for scaling can be continued to be used in future also and there was no need to change the same. Thus the scaling is continued.
23. The Apex Court in Sanjay Singh (supra) has reiterated the same order in para 33 of the report that scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. The Apex Court in the context of judicial service examination where there were common subjects held that scaling could not have been applied for. The Apex Court has summarized the position regarding scaling thus:-
45. We may now summarize the position regarding scaling thus :
(i) Only certain situations warrant adoption of scaling techniques.
(ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.
(iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.
(v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.
(vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk-dove' effect (strict/liberal valuation).
24. The Apex Court in Sanjay Singh (supra) has laid down that every method or system has its merits and demerits and even in linear standard method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability. Scaling method should be under continuous review and evaluation and improvement. Scaling may be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the hawk-dove effect(strict/liberal valuation). When we apply the Apex Court dictum of Sanjay Singh (supra), it cannot be said that the Commission had committed illegality in applying the scaling in the aforesaid manner.
25. The Apex Court, in K.Channegowda & Ors. Vs. Karnataka Public Service Commission & Ors., (2005) 12 SCC 688, has laid down that scaling can be applied at certain level where variation in marks is plus or minus and plus or minus 20 or more as all the candidates did not get the benefit of moderation. The Apex Court has laid down thus:-
43. Another aspect of the matter is with regard to applying the scaling method as per the direction of the High Court. The scaling method has been described earlier in this judgment. The selected candidates have a grievance against the application of this method. It was submitted that it may not be proper to apply the scaling method only in respect of subjects where the answer scripts have to be moderated by Head Examiner/Chief Examiner and not to other subjects where the High Court has upheld the moderation/ random checking by the Head Examiner/Chief Examiner. We have given the submission our serious thought. The scaling method is applied only with a view to maintain a uniform standard in the marking of answer scripts. As is well known some answer scripts are randomly taken up for evaluation by Head Examiners/Chief Examiners. It may be that some examiner may be very liberal and generous in awarding marks whereas some other examiner may award much less marks for the same quality of answer. Upon moderation, no doubt the candidate whose answer paper is moderated gets benefit of moderation, but such benefit is not extended to other candidates whose answer scripts may have been examined by the same examiner, but were not randomly selected for re-evaluation by the Head Examiner/Chief Examiner. It is true that there is bound to be some difference in the marks awarded by different examiners in the same subject. But the need for applying scaling method arises only in cases where the variation in marks awarded exceeds a certain level. It is, therefore, not necessary that the scaling method should be applied in all cases. The scaling method will be applied only where the variation in marks is plus or minus a certain level or percentage. The High Court in the instant case has directed that scaling method shall be applied only when it is found that average variation is plus or minus 20 or more. Wherever the average variation is less than plus or minus 20, general review of the marks awarded need not be done. We were told that the scaling method is now being applied in many competitive examinations held in this country and the purpose of applying the scaling method is to bring about a certain uniformity of standard in the matter of award of marks by the examiners. No exception can be taken to the scaling method in principle.
44. In fact this Court in U.P. Public Services Commission vs. Subhash Chandra Dixit and others : AIR 2004 SC 163, has found the scaling method to be fair since it seeks to eliminate the inconsistency in the marking standards of the examiners. This Court has observed:-
"There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by applying the scaling formula. If scaling method had not been used, only those candidates whose answer sheets were examined by liberal examiners alone would get selected and the candidates whose answer sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners".
45. Then remains the question as to whether it will make any difference in the instant case if the scaling method is not applied to subjects where valuation and revaluation has been upheld by the High Court. In our view, it will make no difference because the High Court has not found it necessary to direct re-evaluation of answer scripts in those subjects where the average variation was not found to be more than plus or minus 20%. Thus, the subjects in which the High Court has not directed re-evaluation are those subjects where in any case the scaling method would not be applicable because the average variation of marks has been found to be within the prescribed parameter. We, therefore, uphold the direction of the High Court to apply the scaling method in re-evaluation of answer scripts pursuant to the order of the High Court.
26. In view of the decision of the Apex Court in Sanjay Singh (supra), the scaling resorted to consider the reference of the variation was appropriate so as to arrive at just result. It is not in dispute that in the RAS Examination and Subordinate Service Examination, the method of scaling had been resorted to with effect from 1993. In Mahesh Kumar Khandelwal (supra), this Court has upheld the action of the Commission in similar set of facts and the Apex court dismissed the SLP in limine.
27. In Rajasthan Public Service Commission Vs. Ramesh Chandra Pilwal(supra) also, this Court relying upon the decision in Mahesh Kumar Khandelwal (supra) approved the method of scaling. Thus consistently, this Court has approved the method of scaling in RAS Examination held by the Commission. Decision of this Court in Dhanpat Mali Vs. RPSC & Ors. alongwith other writ applications decided vide order dated 27.10.2009 is in respect of RJS Rules, 2005 wherein the decision of the Apex Court in Sanjay Singh (supra) is squarely attracted as the question papers were similar to all the candidates. Whereas the scaling resorted to was held to be permissible considering large number of optional subjects available in the RAS and Subordinate Service Examination in question. Ratio of the decision in Ramesh Chandra Pilwal (supra) cannot be applied in the instant case. This Court has taken note of common post and also the fact that optional subjects were not available in Rajasthan Judicial Service examination. Thus, the ratio in the aforesaid case has different field to operate.
28. The Apex Court, in Sadananda Halo & Ors. Vs. Momtaz Ali Sheikh & Ors., (2008) 4 SCC 619, has held that validity of recruitment could not be judged on the basis of microscopic details. It was also not proper to get sample survey of successful/unsuccessful candidates done through judicial officers. The court has to decide on the basis of pleadings of the parties. A roving enqiury cannot be made by this Court.
29. When we consider the submission raised by the counsel appearing on behalf of the petitioners that absurd results have been caused due to application of the scaling method, chart which has been placed for consideration, indicates that the person who has obtained less than the average marks had been awarded marks in proportion and the person who has obtained higher marks, his marks had been reduced by applying the scaling method. There is consistency in the method of scaling which has been resorted to. The Committee which was appointed by this Court has also found on fact that the formula of scaling used is correct and the same scaling has been applied for each subject. Same scaling has been applied for each examiner. No calculation mistake was found while operating formula.
30. In view of the aforesaid finding recorded by the Expert Committee appointed by this Court and even otherwise the petitioners counsel were unable to indicate that the formula was wrongly applied so as to give undue benefit even to a single candidate. Their main thrust of argument was that the scaling formula could not have been applied which we have found to be meritless. Certain observations have been made by the Committee for future guidance of the Commission which has also been observed by the Apex Court in Sanjay Singh (supra) that scaling formula has to be further studied and applied to the fact in appropriate manner. There has to be continuous study.
31. The submission raised by the counsel appearing on behalf of the petitioners that the Commission used the scaling at the level of examiner as well as subject-wise. The formula which has been applied is quoted below:-
RAJASTHAN PUBLIC SERVICE COMMISSION, AJMER SPECIAL DIVISION Regarding scaling formula adopted in RAS Exam, 07.
SCALED MARKS = M+(Xi X)*e/ei Name of Candidate:
Subject - Roll No. : Raw Marks= 0 Scaled Marks= Examiner Code - M= COMBINED MEAN OF ALL EXAMINERS/SUBJECTS 0 Xi= RAW MARKS OF INDIVIDUAL 0 X= MEAN OF EXAMINER/SUBJECT 0 e= STANDARD DEVIATION POOLED OVER ALL EXAMINERS/SUBJECTS 0 ei= Standard deviation of the examiner/subject 0 SCALED MARKS = M=(Xi X)*e/ei 0 +( 0 - 0)* 0/ 0 Scaled Marks= M= Combined Mean of all examiners/Subjects Xi= Raw marks of individual m= Mean of examiner / Subject S= Standard deviation pooled over all Examiners/Subjects s= Standard deviation Examiner/ Subject SCALED MARKS Xi = (S/s)*xi+(M-(S/s)*m) ( 0/0 ) * 0+ (0 - ( 0/0 ) * 0 Scaled Marks=
32. There is a common formula under the linear standard method for another scaling. Thus, it cannot be said that the formula has been applied at two levels. When one formula is to be applied, it has to be applied completely and not in part. It cannot be said that the Commission has modified the V.Natarajan scaling formula. Standard deviation of a subject and average standard deviation of all subjects has been worked out methodically.
33. We also do not find any merit in the submission that blank scripts were also given benefit upto 50 marks as apparent from the return filed by the respondents. Benefit has not been given where the copies have been left blank and marks have been awarded only when questions have been attempted and such marks have been taken into consideration for working out standard deviation of a subject and average standard deviation of all subjects which is permissible. We find the submission to be futile that there were less than 100 candidates in one subject more than one examiner could not have been appointed. In our opinion, the decision of the Commission cannot be said to be mala fide for this reason. The fact remains, where there was more than one or two examiners, examiner variation has been applied where there were only one examiner mean variation has not been applied.
34. The submission raised by the counsel appearing on behalf of the petitioners that variation has been caused in ranking of selected candidates which has produced absurd results. We have carefully gone through the formula and find that it has been uniformly applied and it cannot be said that it has produced absurd results, rather it worked out the average mean of all the subjects. Standard deviation of all the subjects to do so was necessary considering the optional subjects and papers and large number of examiners. It could not be said that moderation ought to have been applied for examiners variation whereas scaling for subjects variations. In our opinion, the scaling method has rightly been applied by the Commission after obtaining experts opinion. In compulsory papers, examiner-wise scaling has been done and not subject-wise. Where there was only one examiner in optional subjects, examiner-wise scaling has not been done. It has been resorted to where there was more than one examiner in optional papers and subject-wise scaling of the optional papers has been done which is permissible.
35. The object to be achieved was to bring all the candidates opting optional subjects to a common score. Object is not to test the subject proficiency of the candidate, but is to observe general ability of a candidate. Thus, the scaling has been applied uniformly in optional subjects, without any deviation.
36. Learned counsel submitted that the Commission placed all the subjects on the same scale by applying scaling formula not only to optional subjects, but also to the compulsory subjects, which resulted in scaling of marks even for those subjects which could not be offered in combination. Similarly, scaling with reference to marks obtained in Statistics and Mathematics has also been applied, which could not have been done otherwise. Management and Public Administration also could not have been applied at the same scale as that combination was not allowed. The submission is not at all tenable as when there are optional subjects, even when they could not be offered in group together in order to arrive at just mean of standard deviation of all subjects, it was necessary to resort to the method of scaling even in such papers. Scaling could not have been left out as suggested in a group of some papers which cannot be offered at same time, there has to be scaling of all optional subjects, otherwise, subjects which have variations could not have been scaled and that would have resulted into anomalies. Scaling has to be applied equally to all cases and in case it was not done would have resulted into discriminatory action violating the principles enshrined under Article 14 of the Constitution and the scaling would have been rendered illegal and arbitrary.
37. The submission raised by Shri Sanjeev Prakash Sharma that Ms. Sunita Meena had been benefited by favouritism is equally hollow. It cannot be said that the formula had been wrongly applied in her case. There is no specific averment in the petition that she is relative of Shri H.L. Meena, Member, Rajasthan Public Service Commission. In the petition, it is averred that perhaps she is relative of Shri H.L. Meena. There is no specific averment made. Shri H.L. Meena, was not even member of the Interview Board. Thus, the submission has been made only for the sake of rejection and is hereby rejected. Similarly no categorical case has been made out by the learned counsel of any particular favouritism caused except making a vague submission at Bar in general. Merely because some students have been given higher marks in the interview, it cannot be said that there was mala fide. There are incidence when the students obtained higher marks in the interview also and they have been benefited by method of scaling also, merely by that, it cannot be inferred that the action ipso facto is rendered mala fide by the aforesaid fact. We do not find that the case of mala fide or award of higher marks in the interview, has been substantiated by the petitioners.
38. It was submitted that scaling was not permissible in view of Rules of 1999. Rule 15 of the Rules of 1999 provides scheme of examination, personality and viva-voce test. Rule 15 is quoted below:-
15. Scheme of Examination, Personality and Viva-voice Test :- The competitive examination shall be conducted by the Commission in two stages i.e.Preliminary Examination and Main Examination as per the scheme specified in Schedule -III. The marks obtained in the Preliminary Examination by the candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination.
Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidates interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service candidate having 'C' Certificate of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate :
Provided that the commission, on intimation being received from the Government before declaration of the result of the Preliminary Examination, may increase or decrease the number of vacancies advertised.
Rule 17 provides for recommendation to be made by the Commission that has to be on the basis of marks finally awarded to each candidate. Rule 18 provides for retotalling of marks and prohibits re-evaluation of the answer-scripts. Merely by the provision made in Rule 18, that there shall be no re-evaluation, it cannot be said that scaling method could not have been applied. There is vast difference in scaling and revaluation. Scaling is done so as to remove anomalies as pointed out by the Apex Court in para 24/25 of the dictum in Sanjay Singh (supra). The submission raised that the marks obtained in the written examination and the marks of the interview have to be added does not oust the element of scaling. Such scaling is not permissible in the cases of common subjects. But in the case of optional subjects available to be opted by large number of candidates scaling has been held to be permissible by the Apex Court.
39. In our opinion, scaling method is not ousted by operation of the Rules though scaling is not provided under the Rule, at the same time in order to arrive at just result, the Commission can evolve any appropriate method or formula as laid down by the Apex Court in Andhra Pradesh Public Service Commission Vs. Baloji Badhavath & Ors., (2009) 5 SCC 1. The Apex Court held that Commission which has been constituted in terms of the provision made in Constitution of India is bound to conduct examination for appointment to the services of the State in terms of the Rules framed by the State. However, it is free to evolve procedure for conduct of examination. While conducting the examination in a fair and transparent manner as also following known principles of fair play, it cannot completely shut its eyes to the constitutional requirements. How the Commission would judge the merit of the candidates is its function. The Apex Court has laid down thus:
25.How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jafeer Saheb. Per se, it did not commit any illegality. The correctness of the said decision, as noticed hereinbefore, is not in question having attained finality. The matter, however, would be different if the said rules per se are found to be violative of Article 16 of the Constitution of India. Nobody has any fundamental right to be appointed in terms of Article 16 of the Constitution of India. It merely provides for a right to be considered therefor. A procedure evolved for laying down the mode and manner for consideration of such a right can be interfered with only when it is arbitrary, discriminatory or wholly unfair.
40. Coming to the submission of learned counsel appearing on behalf of the petitioners that the Expert Committee in its meeting held on 13.3.2009 did not consider the material and did not apply its mind. When we consider the minutes of the meeting held on 13.3.2009, it indicates that seven persons were present in the meeting including the experts and the committee has reviewed the method of scaling of marks, marks obtained in the examination in each competitive examination. Proceedings of the standing committee meeting held on 13.3.2009 at Rajasthan Public Service Commission, Ajmer where the scaling was discussed Ad longtum has also been placed for consideration. The process of scaling was discussed in detail. Formula was also considered. Decisions of the Apex Court were also taken into consideration. After the said discussion, it was recorded that the method of scaling shall remove variations in marks resulting due to examiners as well as variation due to subjects at different stages. Thus, it was decided by the Committee to recommend that the method of scaling can be adopted for declaring the result. It cannot be said that scaling had already been adopted by the time Committee took decision as is apparent from the noting recorded in the original file produced alongwith detailed chart. Scaling was done later-on and it was totally computerized. The question was of merely application of the formula to available data it cannot be said that the scaling had been done earlier and before meeting of the expert committee held on 13.3.2009, the submission is contrary to the record, notesheet, chart which was placed before the committee. The minutes of the meeting dated 2.2.2009 have also been placed on record where elaborate discussion has been made, various presentations were made by the various Public Service Commissions in the meeting. Upon consideration of the minutes of meeting dated 2.2.2009, decision was taken to apply the scaling. It could not be said that mind has not been applied in the instant case by the Committee of Experts. There is reference in the minutes of meeting dated 13.3.2009 to the minutes dated 2.2.2009. It is apparent that the scaling was not done earlier, a detailed chart produced before the committee of experts has been submitted for our perusal by Shri Kumawat, Additional Advocate General which clearly indicates that scaling has been done subsequently and not beforehand. The submission raised by Shri Sanjeev Prakash Sharma is thus found to be devoid of substance as it is contrary to the record.
41. For the aforesaid reasons, we hold that no illegality was committed by the Commission in applying the scaling in the Examination of RAS and Subordinate Services Examination, 2007.
42. Coming to the submission raised by the counsel appearing on behalf of the petitioners that larger number of candidates of OBC Category were called than permissible by the Commission only three times candidates of OBC could have been called as compared to the posts reserved for that category. Consequently, the action of the Commission is bad in law.
43. We are not at all impressed by the aforesaid submission raised by Shri Sanjeev Prakash Sharma and Shri R.N. Mathur appearing on behalf of the petitioners. Firstly the cut-off marks which were fixed for the General Category were 656 whereas thrice number of the candidates of OBC Category were having much higher marks as compared to the marks fixed for the General Category candidates. Thus in order to bring the candidates of OBC Category at par with that of General Category, the cut-off marks for OBC were reduced to 656, which resulted into calling more than three times number of OBC candidates for the purpose of interview. The action is constitutionally valid for the reason that the OBC Category candidates are entitled to stake their claim firstly as General Category candidates; in case they qualify in General Category, they are required to be adjusted in that category and not in the OBC Category. Secondly, no prejudice has been caused to the petitioners by the aforesaid action. Only additional OBC candidates were called due to the aforesaid reason, in which action we have found no illegality.
44. This Court also in Bhawani Singh Kaviya (supra) has directed to redetermine the cut-off marks of general category/OBC/SC/ST. The Commission was also permitted to reduce the marks secured by the OBC Category candidates to bring it at par with the General Category candidates. Thus, the action is in accordance with the decision rendered by this Court in Bhawani Singh Kaviya (supra), which was rendered with respect to the Preliminary Examination of 2007 itself. Consequently, the Rajasthan Public Service Commission has not committed any illegality. The submission raised by the counsel appearing on behalf of the petitioners is thus rejected.
45. In view of the aforesaid discussion, we are of the opinion that the scaling cannot be said to be illegal and arbitrary. The Commission has not violated the mandate of Sanjay Singh (supra). No error has been committed in reducing the cut-off marks of OBC Category candidates to bring at par with General Category candidates. No favouritism was done to any candidate and the scaling is found to have been uniformly applied to all the candidates. The petitioners have also failed to substantiate their case that to any other candidate higher marks were awarded due to favouritism.
In view of the aforesaid discussion, we have no hesitation in dismissing the writ petitions. Accordingly, the writ petitions are dismissed. Interim stay is hereby vacated. The Commission is free to proceed further in accordance with law. We leave the parties to bear their own costs incurred on the writ petitions.
(MAHESH BHAGWATI),J. (ARUN MISHRA),C.J. Skant/-