Rajasthan High Court - Jodhpur
Chandu Parihar & Anr. vs State Of Rajasthan & on 11 December, 2014
Bench: Sunil Ambwani, Prakash Gupta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
1.D.B.Civil Special Appeal No.1695/2014
Chandu Parihar & anr. V/s State of Rajasthan &
ors.
2.D.B.Civil Special Appeal No.1696/2014
Lalit Kumar Bishnoi & ors. V/s State of Rajasthan & ors.
Date of Order:: 11.12.2014
PRESENT
HON'BLE ACTING CHIEF JUSTICE SUNIL AMBWANI
HON'BLE MR.JUSTICE PRAKASH GUPTA
Mr.R.N.Mathur )-for the applicants-appellants.
Mr.Mahendra Vishnoi )
Mr.A.K.Choudhary for the respondent no.3.
ORDER
BY THE COURT (Per Hon'ble Sunil Ambwani, Actg.CJ)
1. We have heard learned counsel appearing for the applicants- appellants and learned counsel appearing for the respondent no.3- Bhanwar Lal, who was petitioner in the writ petition.
2. By this Special Appeal, the applicants-appellants, who were declared successful in the written examination of the Rajasthan Administrative Service Examination-2012 and for which the interviews have not been held so far, have challenged the Judgment of learned Single Judge dated 26.11.2014, rendered on remand by the Division Bench vide order dated 28.7.2014 disposing 2 of D.B.Civil Special Appeal (Writ) No.513/2014 Rajasthan Public Service Commission V/s Bhanwarlal & anr.
3. It is stated that though the results of the written examination were declared, none of the selected candidates were made party-respondents to the writ petition and thus, the Judgment suffers from fatal defect. Some of the successful candidates, namely, Manvender and Raja Bissa made an application to be impleaded as party-respondents. They were neither impleaded nor were allowed to intervene as intervenors in the matter. It is alleged by respondent that their counsel argued the matter, but there is no mention of their intervention in the Judgment passed by learned Single Judge.
4. The respondent-petitioner had challenged the results of the written examination of Rajasthan Administrative Service Examination-2012 on the ground that scaling system has been wrongly made applicable in the main written examination. A learned Single Judge had allowed the writ petition on the ground that the Rajasthan Public Service Commission (RPSC) could not have adopted the scaling system in the written examination. The Rajasthan Public Service Commission filed D.B.Civil Special Appeal (Writ) No.513/2014, which was allowed and the matter was remanded for examining the possible pitfalls or discrepancies of the scaling method or moderation technique applied by the Rajasthan Public Service Commission in RAS (Main) Examination- 3 2012. The Division Bench observed in the operative portion of the judgment as follows:-
"A close scrutiny of the matter, in our considered opinion, the learned Single Judge has not examined some of the distinguishing features in the judicial services examinations and the examinations conducted for State services, and have applied ratio decidendi of Sanjay Singh's case in abstract sense which has finally culminated into some caustic remarks against the functioning of the Commission. While recording its indignation about the procedure adopted by the Commission, the learned Single Judge has not recorded cogent finding that the same is arbitrary or against the known principles of fair play. Certain stray examples of apparent disparity in the raw-marks and the scale marks on which learned counsel for the respondent has harped and feel exasperated, in our considered opinion, cannot ipso facto embrace the entire exercise of scaling of marks by the Commission under cloud. That apart, there is no finding worth the name in the impugned judgment and order of the learned Single Judge for completely repudiating scaling method pressed into service by the Commission. The method of scaling and moderation of marks for achieving common standard of assessment of marks when applied uniformly, per-se cannot be categorized as infirm. Well it is true that issue relating to adoption of scaling and moderation technique is contentious and there are certain question marks about its efficacy but then there is no common (equalized) standard of paper evaluation. It is really beyond comprehension to have a full-proof common standard of assessment of marks, which can be equated as fool-proof 4 with a "Midas Touch". Need of the hour is to achieve inter and intra subject parity via proper efficient and transparent mechanism, which can remove ambiguity and prevent the merit to be sacrificed at the altar of randomness and subjectivity. The issues which have cropped up in this appeal having ramification on the scaling method and moderation technique, which has resulted in apparent disparity, arbitrariness, or inequality in common assessment of marks amongst candidates, have not been addressed by the learned Single Judge in the impugned judgment and order. Moreover, the respondent writ-petitioner has not laid foundation in this behalf in the main petition although had made an attempt to buttress his grievances in this behalf in the rejoinder. Be that as it may, the fact remains that the learned Single Judge has not examined the matter in that background and has essentially recorded his conclusions by applying ratio decidendi in Sanjay Singh's case; we are not persuaded to examine these contentions of the learned counsel for the respondent.
A conjoint reading of the verdict of Hon'ble Apex Court in Sanjay Singh's case and decision of the Coordinate Bench in Jai Singh's case, has made us to believe that verdict of the learned Single Judge in repudiating the scaling method and moderation technique whole-hog cannot be sustained and as such the impugned judgment is liable to be reversed to that extent and the matter is liable to be remanded back to the learned Single Judge for examining the possible pitfalls or discrepancies of the scaling method and moderation technique applied by the Commission in RAS (Main) Examination 2012.
The upshot of the above discussion is that this intra- Court appeal is allowed, the impugned judgment and order 5 passed by the learned Single Judge is set aside and the matter is remanded back for reconsideration on the issue enumerated in the penultimate paragraph of the verdict."
5. By the impugned judgment, learned Single Judge has held that the scaling has been adopted in such a manner, which has resulted in vitiating the entire results, inasmuch as, in the compulsory subjects the scaling method could not have been adopted. The scaling has resulted in variation of marks from 47 to 0, which has resulted in adoption of scaling system an arbitrary exercise, which cannot be sustained. After recording such findings, learned Single Judge has held that there should be a 10% cap in the award of marks after adopting the scaling system. The observations of learned Single Judge in arriving at such conclusions, are quoted below:-
"55. This Court is also deeply concerned to note that in the absence of any cap or limitation on either side of the scaled up or scaled down marks, the marks have varied from 47 to 0 and various other examples cited above and this has caused serious prejudice to the candidates. Those who were meritorious and were otherwise passed and entitled to be called for interview were not so called and those who had otherwise failed were scaled up and declared `pass' and were so called for the interview and if this process is allowed to continue any further, some of them could even be so offered appointment in these cadres merely on the basis of their artificial or scaled marks. This wide variance of marks has 6 obviously occurred due to the mathematical formula and the factors taken into consideration for applying this formula was `standard deviation' and `standard mean' to determine the `examiner variability' and `subject variability' and such factors were computed on the basis of marks awarded by human beings and individuals and no sufficient reasons were explained before this Court to justify the wide difference in the number of examiners for the subjects or answer books of similar number nor sufficient reasons were explained and established before this Court to justify the arrival of standard mean in different cases of different subjects so as to justify the application of scaling method to even the scales and bring a sort of uniformity. One may also feel that if the difference in the marks is not very high, why at all these methods should be applied, like a candidate appearing in Mathematics cannot obviously be compared with a candidate appearing in Philosophy and their marks are bound to be at different levels. Can the marks of these two extreme subject or should they be brought to a uniformity on a common scale, merely by applying the method of scaling which will give rise to artificial marks & that too varying them to different levels without any limit - well a point to ponder ? The choice is already with the candidates and they can choose their optional subjects barring negative combinations of optional subjects as given in Schedule III. Likewise, the scaling method could not be applied for compulsory papers as held by the Supreme Court in Sanjay Singh case (supra) (para 27) but the same has been applied in the present case. No separate data has been produced before this Court to show that only moderation method was applied for compulsory papers to undo the effect of `examiner variability' on the one hand and to undo the effect of `subject variability' on the other hand scaling 7 method was applied.
56. This Court cannot permit such results based on indiscriminate application of scaling method to be pushed down under the carpet, as it has serious consequences for not only public institutions entrusted with the responsible job of holding such competitive examinations for the high administrative posts in the State, who will form part of governance and backbone of the State bureaucracy and executive, having large implications for the public at large, but if such public institutions are not held accountable for such unthoughtful application of statistical methods once they are subject to judicial scrutiny, it may also send a very wrong message of Courts allowing them to have a casual or lackadaisical (`Chalta Hai') attitude. When these institutions and public bodies are held answerable in courts of law, their duty and obligation is enormous and unless the courts of law can arrive at a reasonable satisfaction of their objectivity, transparency and reasonableness in holding the examinations in a fair and transparent manner in accordance with law on the basis of cogent & relevant evidence produced by them, the judicial imprimatur or seal of approval cannot be just given to them for askance and merely because in the previous examinations invoking and application of scaling method came to be upheld by this Court, like in the case of Jai Singh (supra). One cannot lose sight of the binding precedent of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) quoted above, wherein, except on the basis of strict compliance of the guidelines, factors and parameters laid down therein, the application of the scaling method was deprecated and it was held to be not applicable for the competitive examination of U.P.State Judicial Service. The 8 said Supreme Court decision is also not distinguishable merely because it dealt with judicial services under U.P.Judicial Service Rules & 1999 Rules were applicable to Administrative posts competitive Examination of RAS/RTS in Jai Singh (supra) case. Also, in Jai Singh's case (supra) it was never held that such pre-study of relevant material should not be done.
57. In the absence of any cogent material before this Court produced by the RPSC, this Court cannot sustain the result on the basis of arbitrary & casual application of scaling method to the present examination of RAS/RTS 2012. The applicability of scaling method cannot be upheld merely because choice was available to the candidates to take up optional subjects.
Such decision is fact based decision and not law or precedent to apply scaling method based decision."
6. It is submitted by learned counsel for the applicants- appellants that the scaling method was not adopted in the RAS Examinations for the first time. The scaling has been adopted in all the previous Examinations from 1993. He has relied upon the Division Bench decisions of this Court in Mahesh Kumar Khandelwal & Ors. V/s State of Rajsthan & Ors. (1994(1) RLW
533), Rajasthan Public Service Commission V/s Ramesh Chandra Pilwal (1997(2) RLW 1348), Manish Sinsinwar & Ors. V/s Rajasthan Public Service Commission & anr. (D.B.Civil Writ Petition (PIL) No.268/2004) decided on 14.6.2004 and Jai Singh & ors. V/s State of Rajasthan & anr. (2011(2) WLC (Raj.) 46), in which the adoption of scaling method for a rational evaluation of results in a multiple 9 choice of subjects in RAS examination was upheld. The law in this regard is well settled and crystallized by the Division Bench judgments approving the system of scaling adopted by the Rajasthan Public Service Commission in the RAS Examinations.
7. Learned counsel for the applicants-appellants submits that in Jai Singh & ors. V/s State of Rajasthan (supra), a Division Bench of this Court had approved the system of scaling adopted in the previous RAS Examination and held as follows:-
"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 10 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."
8. It is submitted that the argument that the scaling method cannot be applied for evaluation of compulsory papers was considered in Jai Singh's case (supra) and the same was repelled in view of the combinations of papers which could be opted with compulsory subjects by the candidates.
9. Learned counsel for the applicants-appellants has also relied upon the Additional Affidavit filed by the Rajasthan Public Service Commission before the Division Bench in D.B.Civil Special Appeal (Writ) No.513/2014, in which it was clearly stated that considering the variation of marks in the compulsory papers, the Addl.Head Examiner decided to make a random inspection of 15% answer sheets and it was decided to adopt the method of subject-wise scaling for the optional papers by the statistical analysis which was programmed by the computer. The relevant paragraphs-6 to 10 of the additional affidavit of the Rajasthan Public Service Commission are quoted below:-
"6. That to minimize the examiner variability and to ensure 11 uniformity for the evaluation of the scripts at the time of evaluation, upon 5-6 examiners (E-1), an Addl.Head Examiner (E-2) was appointed. Over all one Head Examiner for each centre was appointed. To achieve uniformity in evaluation, a meeting of Head Examiner with all Addl.Head Examiner and Examiner was held soon after assembling at the respective valuation centres. In pursuance of the guidelines of the RPSC, they discussed thoroughly the question paper, question wise answer parameters and about the weightage to be given to various aspects of the answers to give marks, looking to the clarity in approach and originality of the fundamental ideas, and in the light of the discussion they arrived on the norms to minimize the variation in assigning marks.
In spite of the norms agreed, many examiners may tend to deviate, by their strictness or liberalness or carelessness during the courses of evaluation. Therefore, to supervise and minimize such tendency Addl.Head Examiner (E-2) made a random inspection of the answer scripts to the extent of about 15% and reevaluated them and by doing so, if marks increased or decreased, they discussed it with the respective examiner's (E-1) about the variation of the marks, to minimize the further variability in remaining answer scripts. Head Examiner inspected the answer scripts randomly, where in difference of more than 5% in marks awarded by E-1 and E-2 was observed. The evaluation process was adopted by the RPSC to minimize the examiner variability on the respective centres, looking into the large number of the examiners as well as the scripts. It was a pre-requisite of scaling technique, to keep the normal distribution. Examiners were directed to use Red Ink in column E-1 of the script, E-2 was directed to use Green Ink 12 in Column E-2 and Head Examiner was directed to use Black Ink. On this juncture, it is pertinent to mention here that despite of the all efforts as mentioned above, examiner variability was widely available, amongst the examiner on each center as well as amongst the four different Evaluation centres.
7. That after evaluation of the answer scripts, on receiving the answer scripts from all four centres, RPSC make it assured that the marks obtained were got checked mathematically so as to ensure that the marks were written correctly on the Cover Page by the examiners while checking the Answer-books completely (meaning thereby no answer kept unchecked). There after all statistical data's regarding scripts, total marks, examiner data, and subject wise data were entered into the computer.
8. That to minimize the examiner variability as well as the subject variability between the heterogeneous subjects, commission decided to adopt the same scaling technique as being adopted in earlier such exams and upheld in Jai Singh's case. It will be pertinent to mention here that for four compulsory papers, more than 500 examiners were appointed to assess the copies of the candidates at four different centers, in such a situation, where large number of examiner evaluated the answer scripts related to a subject, a large number of examiner variability would be in existence, therefore examiner wise scaling technique was adopted. That in optional paper candidates adopted different 37 heterogeneous subjects and therefore to minimize the subject wise variability, subject wise scaling and examiner wise 13 scaling technique was adopted. The scaling technique adopted, is described herewith as under:-
A. That after valuation process valued marks in the scripts were equated as raw marks.
B. That answer scripts having '0' marks were not included in the process of scaling.
C. That for each subject examiner wise statistics analysis was prepared on computer by the programme. Thereafter number of scripts, mean of examiners, standard deviation of each examiner, overall mean and overall standard deviation have been derived by the mathematical calculations.
D. That in a case where copies were evaluated by more than one examiner examiner scaling has been done by way of computer programme adopting a linear formula which is reproduced as under:-
S =M+(Xi-X) * (e/ei) S= Scaled marks M=Overall Mean Xi=Raw Marks X=Examiner/Subject Mean e=Overall Standard Deviation ei=Examiner/Subject Standard Deviation.
E. That examiner wise scaling has not been adopted in those copies which were examined by a single examiner. F. That after examiner wise scaling, subject wise scaling has been adopted for the optional papers by the statistical analysis which was programmed by the computer. Under this statistical analysis, number of scripts of each subjects, mean of each subject, standard deviation of each subject and over all standard deviation were derived by the 14 mathematical calculation thereafter subject wise scaling has been done on the basis of above mentioned linear formula by the computer.
9. That it will be pertinent to mention here that in compulsory paper only examiner wise scaling technique has been adopted and for four optional papers, first of all examiner wise scaling and thereafter, subject wise scaling has been adopted and on the basis of scaled marks result was declared.
That scaling technique applied by the commission in R.A.S.and Subordinate Service Examination as received approval of this Hon'ble Court right from the year 1993 starting from the case of Mahesh Kumar Khandelwal and 16 others V/s State of Rajasthan and others 1994(1) RLR 533, Rajasthan Public Service Commission V/s Ramesh Chand Pilwal (RLW 1997 (Raj.) 1348) and in the matter of Manish Sinsinwar & Others Vs. Rajasthan Public Service Commission & Anr. (D.B.Civil Writ Petition No.368/2004 decided on 14.6.2004) and lastly in the case of Jai Singh & Ors., reported in 2011 (2) WLC 46. The law was well settled and duly crystallized by atleast five Division Bench Judgments. Technique of scaling has been adopted by the appellant commission which has been done for all the candidates.
10. That the scaled marks were finally compiled for final result and merit was prepared on the basis of the scaled marks of all the subjects. On the basis of above procedure, result of examination 2012 was declared by RPSC on 27.01.2014 and 3165 candidates were declared successful for interview on the basis of the result declared."
15
10. Learned counsel appearing for the respondent no.3, who was petitioner in the writ petition, submits that learned Single Judge has considered all aspects of the case and has arrived at the conclusion that the method of scaling adopted by the RPSC resulted into wide variation of marks from 47 to 0, has vitiated the entire results. His observations are pertinent in the matter in which the moderation system could not have been adopted in compulsory papers. It is submitted that the RPSC has accepted the judgment and directions to reconsider the entire matter and to take a fresh decision as to whether the scaling was permissible in both compulsory and optional papers and also to adopt 10% capping on such scaling.
11. Learned counsel for the applicants-appellants submits that it is incorrect to say that the RPSC has accepted the judgment. On the facts and circumstances, the RPSC has adopted the same method of scaling which was adopted in the last four examinations. It could not have decided to adopt a different method of scaling.
12. We have considered the rival submissions, for the purpose of deciding application for interim relief and find that prima facie the entire approach of learned Single Judge in examining the method of scaling, in view of the Division Bench judgment of this Court in Jai Singh's case (supra) and the Division Bench judgment by which 16 the matter was remanded, was incorrect. Learned Singh Judge has travelled beyond the remand order, in recording findings which are contrary to the settled principles of law and judicial precedents which have approved the scaling method in public examinations in which there are large number of subjects to reduce the arbitration of examiner variability as well as subject variability. In the facts and circumstances of the case, learned Single Judge should not have interfered at the stage of declaration of results of the written examination and before the interviews were held. He also could not have proceeded to consider the matter in the absence of any candidates declared successful in the written examination, which was fatal to the decision of the writ petition. The entire judgment, in our view, was pre-mature and the considerations as to whether appropriate method of scaling was adopted, were also made without considering the reply given by the Rajasthan Public Service Commission, Jai Singh's case (supra) and the Division Bench Judgment by which the matter was remanded.
13. The scaling method has been adopted by the Rajasthan Public Service Commission in the RAS Examinations since the year 1993. The method of scaling has been approved and upheld by this Court in Division Bench Judgments in Mahesh Kumar Khandewal's case (supra), RPSC V/s Ramesh Chandra Pilwal's case (supra), Manish Sinsinwar's case (supra) and in Jai Singh's case (supra). In Jai Singh's case (supra), the scaling in compulsory subjects, which 17 have to be taken in combination with optional subjects, was also upheld. Learned Single Judge could not have taken a different view, as he was bound by the decision in Jai Singh's case (supra). We are prima facie of the view that learned Single Judge in order to support his views, has not only ignored the settled law but has also travelled beyond the order of remand, and while recording the findings on the method of scaling adopted, has virtually discarded the scaling system which is being adopted by all the State Public Service Commissions and RPSC in the RAS examinations and has been consistently upheld by this Court. The wide variation of marks on adoption of scaling system, by itself does not make it arbitrary and illegal. The judgment is contrary to the settled law as well as the judgment of the Supreme Court in Sanjay Singh & anr. V/s UP Public Service Commission, Allahabad & anr. (AIR 2007 SC 950).
14. We may also observe here that the principle of capping of 10% in case of scaling, has not been adopted by any Public Service Commission including the Rajasthan Public Service Commission nor this principle has been evolved by any judicial pronouncement on analysis of method of scaling. This principle appears to have been evolved out of some criticism of the scaling system by experts, of which the opinion has not been quoted in the judgment nor the merit of such opinion was examined.
15. In the aforesaid circumstances, we do not find that 18 interference in RAS 2012 selections at the stage of declaration of results of the written examination and that too without impleading the affected persons was appropriate. We also find that the judgment requires consideration by the Court.
16. Issue notice to the respondents no.1 and 2.
17. Let reply be filed by the respondents including the Rajasthan Public Service Commission within six weeks. A rejoinder-reply may be filed by the appellants within two weeks thereafter.
18. List on 3rd March, 2015.
19. Until further orders, the effect and operation of the judgment of learned Single Judge dated 26.11.2014 shall remain stayed. It would be open to the Rajasthan Public Service Commission to take the interviews, declare the results and the State Government to give appointments, which will be subject to the final decision of this Special Appeal.
(PRAKASH GUPTA),J. (SUNIL AMBWANI),Actg.CJ. Parmar