Central Administrative Tribunal - Delhi
Sushil Gaur vs Staff Selection Commission on 7 April, 2022
1 O.A. No.925/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.925
925 of 2021
Orders reserved on : 17.3.2022
Orders pronounced on ::7.4.2022
.2022
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
1. Sushil Gaur
2201031871 - UR
S/o Subhash Gaur
INA Colony, Mahipalpur,
New Delhi
2. Jatin Jain
2201099371 - HH
S/o Neeraj Jain
WZ
WZ-535 B, Street-1,
1, Sri Nagar,
Delhi
3. Manu Sharma
2201100711 - PwD Others
S/o Vishal Sharma,
C 5, 11th Block Krishna Nagar
C-5,
Delhi
4. Abhineet Kumar
2201130062 - UR
S/o Hemant Kumar
B 4226, Street 110/1, Sant Nagar,
B-4226,
Delhi
5. Shivani Sandhu
2201212916 - UR
D/o Changer Bir Sandhu
43, Nirmal Vihar, Karnal
Haryana
2 OA No.925/2021
6. Umakant Yadav
3013305832 - OBC
S/o Lalmani Yada
Gangapur Kalan Post, Dist Sultanpur
Uttar Pradesh
7. Mayank Gautam
3011604083 - SC
S/o Ram Kishor
91, Amirpur Garhi, Muradnagar,
Uttar Pradesh
8. Ankita
2201136066 - SC
D/o Sunderlal
C-3 lane, Shir Panjokhra Sahib, Ambala
Haryana
9. Varun
2201049507 - UR
S/o S.M. Ginotra
14-C, Near Mahabir Mandir, Bahadurgarh,
Haryana
10. Ankita Jain
2201207768 - EWS
D/o Rajesh Jain
Vijay Vihar, New Jain Mandir, Uttam Nagar
New Delhi
11. Govind Yadav
2201191496 -OBC
S/o Rambeer Yadav
B-75, Dwarka, West Delhi,
New Delhi
12. Deepak
2405064179 - OBC
S/o Amitlal Yadav
VPO-Khandora, Tehsil-Bawal,
Rewari, Haryana
13. Surya Prakash
2405018360 - SC
S/o Chob Singh
Rashtriya Military School,
Dholpur, Rajasthan
3 OA No.925/2021
14. Abhinav Gupta
2201224009 - OBC
S/o Uma Shankar Gupta
Sector 3F, Vaishali, Ghaziabad,
Uttar Pradesh
15. Jaspreet Kaur
1601004809 - OBC
D/o Darshan Singh
Near Ponta Sahib, Sirmaur,
Himachal Pradesh
16. Akhil Kumar
2201135186- OBC
S/o Ajay Kumar
PTS Sector 9, Dwarka,
New Delhi
17. Puja Yadav
2405018051-OBC
D/o Ramavtar Yadav
Daulat Singh Pura, Neemrana, Alwar,
Rajasthan
18. Ankit
2405081684- UR
S/o Shiv Kumar Sharma
Gomti Vihar, Gaurav Path, Hindaun,
Rajasthan
19. Nidhi
2201207895 - UR
D/o Maha Singh
Pragati Nagar, Sonipat, Haryana
20. Monika Meena
2405053165 - OH
D/o Brij Mohan Meena
Near Golden Dome, Jagatpura, Jaipur,
Rajasthan
21. Ashutosh Kumar
2201249051 - ST
4 OA No.925/2021
S/o Dashrath Prasad
Dhaam 21, Rasra Ballia,
Uttar Pradesh
22. Manish
2201270047 - SC
S/o Kirat Mal
Preet Vihar, Old DC Road, Sonipat, Haryana
23. Sapna Rani
2201276466 - SC
D/o Shiv Govind
CISF Camp, Surajpur, Greater Noida
Uttar Pradesh
24. Kapil Meena
2201282690 - ST
S/o Keshram Meena
A/89 Ramnagar, Shahdara,
Delhi
... Applicants
(through Advocate Shri Samyak Gangwal)
Versus
1. Union of India
Through its Secretary
Department of Personnel and Training
Ministry of Personnel, Public Grievance and Pension
North Block
New Delhi
2. Staff Selection Commission (HDQR)
Through its Chairman
Block No. 12, CGO Complex
Lodhi Road,
New JLN Stadium
New Delhi-110003
3. Vinay Kumar Singh
S/o Sidh Nath Singh
R/o B-1/215, Baba Colony,
Burari, Delhi - 110084
5 OA No.925/2021
4. Supriyo Paul
S/o Utpal Paul
R/o BalitikuriBakultala
Haora Corporation, Baltikuri,
Haora, West Bengal
5. Sumant Kumar
S/o Pramod Kumar
R/o-Hullukpur Road
Phulwari Sharif, Hullukpur Pari,
Patna, Bihar-800002
6. Suman Saurabh
S/o Upendra Prasad.
R/o Prakhand Nursaray,
Village- Mahgapur,
Post Dharampur, Ajaipur,
Nalanda, Bihar-803120
7. Bagepalli Sreenivas Teja
S/O Bagepalli Siva Sankar
R/O -12-972, 5th Cross,
Anantapur, Anantapuramu,
Andhra Pradesh - 515001
8. Sirimamilla Rajshekhar Yadav
S/O Sirimamilla Balaguravaiah
R/O-5-4/G-6-A, Press Colony,
Veedhi, Kanigiri Mandalam,
Prakasam, Andhra Pradesh -523230
9. Sahil
S/O-Rajendra Singh
R/O-H No. -472, Ekta Colony,
Ward 1, Baroda Road,
Sonipat, Haryana - 131301
10. Sachin B Phulari
S/O-Baburao Phulari
R/O-Shivam Niwas
Mamta Colony, Karegaon Road,
Prabhani, MH-431401
6 OA No.925/2021
11. Rohit Acharya
S/O Koushal Acharya
R/O-Dhaneshwar Colony,
Usto Ki Bari, Bikaner,
Rajasthan- 334001
12. Shravan Patidar
S/O-Aatmaram Patidar
R/O-H No. 16, Ward1,
Tahsil Garoth, Guradiya Narsingh,
Barkheda, Gangasa, Mandsaur,
Madhya Pradesh - 458880
13. Nirmal Kumar Gaurav
S/O Acharaya Girishanand
R/O Paswan Tola, Katihar,
Bihar - 854105
14. Ronit Shabuy
S/O-Sumit Shabuy
R/O-68; Dr. Narayan Roy Sarani,
Beadon Street, Kolkata - 700006
15. Shashank
S/O-Anand Kumar
R/O-16, Gurukul Road,
Mann Enclave, Village Khera
Khurd, Delhi- 110082
16. Twinkle Rajesh Wahane
D/O-Rajesh Gangadhar Wahane
R/O-Plot No. 22 A, Shramjivi Nagar,
Near Madhur Vyasan Mukti Kendra,
Parvati Nagar, Nagpur,
Maharashtra- 440027
17. Erranki Naga Ram Šai
S/O-Sambhu Prasad
R/O-Door No. 10-02-36,
Bodi Raju Gari Street, Rajula Colony,
Jangareddigudem, West Godavari,
Andhra Pradesh- 534447
7 OA No.925/2021
18. Manami Sarkar
D/O Rana Sarkar
R/O-Tufanganj Word, No-08,
Tufanganj, Coochbehar- 736159
19. Kurma Ravi Kaushik
S/O-Kurma Rahulji
R/O-15-104, Hasthina Puram, Chirala,
Prakasam, Andhra Pradesh 523155
20. Gayam Sai Harsha
S/O-Venkateswararao
R/O-4-131/4, Bypass Road Sathupalli,
Khammam, Andhra Pradesh-507303
21. Gaurab Nath Roy
S/O-Samarendra Nath Roy
R/O-249/1, Diamond Harbour Road,
PO & PS- Thakur Pur, Kolkata-700063
22. Garima
D/O-Arun Kumar
R/O-C4E/284, Janakpuri, B-1,
West Delhi- 110058
23. Gajotam Yadav
S/O-Satish Chand
R/O-Village- Dhundhariya,
Peepli, Alwar, Rajasthan- 301709
24. Diksha Singh
D/O-Karan Singh
R/O-23/2, Sidharth Vihar,
Near Shiv Mandir, Kandoli, Dehradoon
Uttarakhand- 248001
25. Dheeraj Kumar
S/O-Dhan Singh
R/O-Nizampur Devsi,
Pakhanpur, Bijnor,
Uttar Pradesh - 246762
26. Chandra Pal
S/O Om Prakash
R/O- H. No. 10, Street No. 3,
8 OA No.925/2021
Bihari Pur Extension, Karawal Nagar
North East Delhi-110094
27. Ashish Kithantya
S/O-Hari Bishnu Kithania
R/O-Block-4, Flat- 1B,
Don Bosco Road, Don Bosco School
Ward No. 41, Siliguri, Jalpaiguri,
West Bengal- 734001
28. Ajay Kumar
S/O Rampal
R/O Bamnauli, Baghpat,
Uttar Pradesh- 250602
29. Piyush Tiwari
S/O-Vishav Nath Tiwari
R/O-Chiddiya Udd, Street No. -4,
Near Ganesh Temple, Jaswantagarh
Rajasthan- 341304
30. Sandeep Singh
S/O-Jaiveer Singh
R/O-L-1/821, Gali No. - 14,
Near Asthal Mandir, Sangam Vihar,
Mehrauli, South Delhi - 110062
31. Sandeep Kumar
S/O-Jeet Singh
R/O-H No, - 579/1, Kataria Market,
New Raileay Road, Nearfire Station,
Gurgaon, Haryana -122001
32. Harender Sharma
S/O-Rajendra Sharma
R/O-Patram Gate, Baddi Mohalla,
Near Hari Giri Math Bhiwani, Haryana - 127021
33. Supriya Chandra
D/O Subhash Chandra
R/O New Basti Indra Nagar, Jamuhan,
Auraiya, Uttar Pradesh-206244
... Respondents
(through Advocate Shri Gyanendra Singh and Shri S.N.
Verma for R-1 and R-2 and Ms. Tanya Agarwal for Shri
Durga Dass Vashist for R-3 to R-33)
9 OA No.925/2021
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
The applicants, 24 in number, have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 against the action of the respondents in conducting Combined Graduate Level Examination, 2019 (hereinafter referred to as 'CGLE- 2019').
2. The undisputed facts leading to the present OA are that a notice with regard to the CGLE-2019 was published on the website of the respondent No.2 on 22.10.2019 (Annexure A1). The scheme of the said examination is provided in para 11 of the said notice. The same reads as under:-
"11 Scheme of the Examination:
11.1 The Examination will be conducted in four tiers as indicated below:
11.1.1 Tier-I: Computer Based Examination 11.1.2 Tier-II: Computer Based Examination 11.1.3 Tier-III: Pen and Paper Mode (Descriptive paper) 11.1.4 Tier-IV: Computer Proficiency Test/ Data Entry Skill Test (wherever applicable)/ Document Verification.10 OA No.925/2021
11.2 The Commission reserves the right to make changes in the Scheme of Examination.
11.3 Marks scored by candidates in Computer Based Examinations, if conducted in multiple shifts, will be normalized by using the formula published by the Commission through Notice No: 1-1/2018-P&P-I dated 07-02-2019 and such normalized scores will be used to determine final merit and cut-off marks."
3. The formula for normalization, as referred to in para 11.3 of the aforesaid notice, provides vide notice dated 07.02.2019 (Annexure A-2) as under:-
"IMPORTANT NOTICE The Staff Selection Commission has already decided to normalize the scores of candidates for the examinations which are conducted in multi-shifts to take into account any variation in the difficulty levels of the question papers across different shifts. The normalization is done based on the fundamental assumption that "in all multi-shift examinations, the distribution of abilities of candidates is the same across all the shifts". This assumption is justified since the number of candidates appearing in multiple shifts in the examinations conducted by the Commission is large and the procedure for allocation of examination shift to candidates is random. The following formula will be used by the Commission to calculate final score of candidates in the multi-shift examinations:
Where:
Normalized marks of jth candidate in the ith shift.
is the average marks of the top 0.1% of the 11 OA No.925/2021 candidates considering all shifts (number of candidates will be rounded-up).
is the sum of mean and standard deviation marks of the candidates in the examination considering all shifts.
is the average marks of the top 0.1% of the candidates in the ith shift (number of candidates will be rounded-up). is the sum of mean marks and standard deviation of the ith shift.
is the actual marks obtained by the jth candidate in ith shift.
is the sum of mean marks of candidates in the shift having maximum mean and standard deviation of marks of candidates in the examination considering all shifts.
Calculation of marks will be done up to 5 decimal places"
4. Pursuant to the aforesaid notice/advertisement for CGLE-2019, the applicants appeared in Tier 1 examination, which was scheduled to be conducted from 2.3.2020 to 11.3.2020 whereas Tier 2 examination was conducted from 15.11.2020 to 18.11.2020. The result of Tier 1 was declared by the Staff Selection Commission (hereinafter referred to as "the Commission") on 1.7.2020 and that of Tier 2 examination was declared on 19.2.2021. Tier 3 of CGLE-2019 was held on 22.10.2020. The marks 12 OA No.925/2021 of qualified/non-qualified candidates, who appeared in Tier 3 examination, were uploaded on the website of the respondent no.2 on 9.7.2021 for a period from 9.7.2021 to 31.7.2021. Tier 4 examination was conducted during the period from 15.9.2021 to 16.9.2021.
5. The grievance of the applicants in the present OA is twofold. The specific grievance of the applicants in the present OA is in respect of Tier 2 and Tier 3 examinations. The first grievance of the applicants is that the respondents have illegally not disclosed the marks of Tier 2 Examination. The second grievance of the applicants in the present OA is that the respondents have applied 'normalization of marks' in an illegal and arbitrary manner. The applicants admittedly do not have any grievance with respect to Tier 1 examination.
6. It is asserted by the applicants in the OA that there is no rationale behind the delay in releasing the ranking and marks of Tier 2 examination and non-release of the ranking and marks by the respondents is in violation of the instructions issued by the DoP&T vide OM No.39020/1/2016-Estt. (B) dated 21.06.2016. 13 OA No.925/2021
7. It is the case of the applicants that the manner in which the respondents have applied the normalization of marks has resulted in applicants' marks being reduced by 50 to 200. It is further asserted by the applicants that the said substantial reduction of marks is absurd, illegal and arbitrary. In this regard, the learned counsel for the applicants has relied upon the judgment of the Hon'ble Apex Court in the case of Sanjay Singh and another vs. U.P. Public Service Commission, Allahabad, reported in AIR 2007 SC 95 = (2007) 3 SCC 720. Learned counsel for the applicants has, particularly, referred to paras 7, 31, 32 and 33 of the said judgment in support of the claim of the applicants.
8. The applicants have prayed for the following reliefs:-
"8. XXX XXX A. Issue a direction to the Respondents to release the result and marks of Tier 2 examination of all candidates prior to release of Tier 3 results;
B. Issue a direction to the Respondents tore-assess and rectify the mistakes and absurdities due to reduction of marks whether by normalization or otherwise of the Applicants.14 OA No.925/2021
C. Issue a direction to the Respondents to conduct Re-examination for Maths Tier 2 paper on the same day."
9. INTERIM RELIEF That during the pendency of the present O.A., this Hon'ble Tribunal be pleased to direct the Respondents to stay/not release/hold the results of Tier 3 examination as upon the release of Tier 3 examination the Applicants will be left with no remedy at all."
9. Initially respondent nos.1 and 2 were only impleaded by the applicants. However, subsequently, the respondent nos. 3 to 33 have also got impleaded in the present OA.
10. Pursuant to notice from this Tribunal, the respondent Nos.1 and 2 have filed a short counter affidavit and prayed for dismissal of the OA. In the said short reply, it is asserted by the official respondents that para 11.3 of the said Examination notice provides that Marks scored by candidates in Computer Based Examinations, if conducted in multiple shifts, will be normalized by using the formula published by the Commission through notice dated 7.2.2019 (Annexure A/2) and such normalized scores will be used to determine final merit and cut-off marks. The respondents have given some details about object behind the normalization and also the methodology adopted by 15 OA No.925/2021 them for execution of normalization in paras 6 and 7 of their short reply affidavit. It is further stated that while disclosing the marks of CGLE-2019 (Tier 2) on 19.2.2021, the Commission has decided that the marks of qualified/non-qualified candidates in Tier 2 will be uploaded on the website of the Commission together with the marks of Tier 3 examination after declaration of Tier 3 (descriptive paper). They have further stated that marks of qualified and non-qualified candidates with Tier 2 together with the marks of Tier 3 examinations were uploaded on website of the Commission on 9.7.2021 for a period from 9.7.2021 to 31.7.2021.
11. With regard to normalization, it is stated by the official respondents that keeping in view the provisions of para 11.3 of the examination notice and the notice dated 7.2.2019, referred to above, the result of Tier 2 of CGLE- 2019 was prepared using the normalization of marks. The normalization of the raw score done with the parameters has been checked using the data provided and the same was found in order. The process of normalization has been used based on universal acceptance to address such differences and to enable comparison of candidate 16 OA No.925/2021 performance across shifts. This process of normalization for Tier 1 and Tier 2 Examinations of CGLE-2019 has been uniformly and correctly implemented without any modification. Besides the documents available on the Commission's website captures the full details of normalization methodology and the formula to be used for score normalization. The official respondents have further asserted that it is well settled principles of law that once a candidate has participated in any recruitment process then the terms and conditions/procedure of the examination cannot be questioned by him/her subsequently. With regard to the reliance of the applicants on the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra), the respondents have asserted that the same refers to management of evaluation and score scaling for descriptive Answer papers where the raw score awarded to candidates can vary based on examiner bias, however, in the case of CGLE-2019 Tier 2 examination and such examination(s) conducted by the Commission where normalization is implemented, the test is based on Multiple Choice Objective (MCQ) type questions where there are no anomalies in the raw score awarded to the candidates. In para 15, the respondents 17 OA No.925/2021 have given the justification for normalization applied in the matter of Mathematic Section in Tier 2 Examination. The respondents have also referred to and relied upon the judgment of the Hon'ble High Court of Kerala at Ernakulam in WP(C) No.21382/2019(W), titled Arun V.P. and others vs. Union of India and SSC, decided on 26.2.2021 (Annexure R1).
12. The official respondents have submitted that marks of qualified/non-qualified candidates appeared in Tier 2 were uploaded on the website of the Commission together with the marks of Tier 3 examination on 9.7.2021.
13. Respondent Nos.3 to 33 have also filed a counter reply and have stated therein that in view of publication of the result of Tier 3 by the respondent Nos.1 and 2, the applicant's prayer in Para 9 of the instant OA has become infructuous and the same should be dismissed accordingly. Private respondents have further submitted that in the rejoinder (in response to the reply of official respondents), the applicants have not disputed the fact that results of Tier 2 and Tier 3 of the Examinations of qualified/non-qualified candidates have been released. 18 OA No.925/2021
14. In the counter reply, the private respondents have asserted that they have successfully cleared Tier 1, Tier 2 and Tier 3 examinations of CGLE-2019 and have also appeared in Tier 4 level and their documents verification process has also been completed by the respondent No.2 and about 28000 candidates, including these private respondents are awaiting the declaration of final result of CGLE-2019 and the applicants, who have been unsuccessful at Tier 2 level, have approached this Tribunal by way of the present OA. These respondents have further submitted that normalization formula is applied in multi-shift examinations to provide level playing field to all the candidates and this has been applied in the past and continues to apply in examination conducted by the Commission, Union Public Service Commission, Railway Recruitment Board, Indian Institute of Management etc. With regard to applicants' reliance on the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra), these respondents have referred to the judgment of the Hon'ble High Court of Judicature at Allahabad in Writ A No.6334/2021, titled Deepak Kumar and others vs. Union of India and others, decided on 1.7.2021, wherein the Hon'ble High Court has considered 19 OA No.925/2021 the judgment of the Hon'ble Apex Court in the case of Sanjay Singh (supra). It is further stated by these respondents that the applicants did not raise any objection to the application of the same normalization formula at Tier 1 level examination, as they cleared the same. However, when after applying the same normalization formula, they have failed in Tier 2 level, they have raised the objection. It is stated that it is a settled proposition of law that that a party cannot be allowed to approbate and reprobate at the same time. In the reply affidavit, the private respondents have referred to and relied upon various judgments of this Tribunal, Hon'ble High Court(s) and Hon'ble Supreme Court in support of their contention that application of normalization has been recognized in law in the case of multi shift examinations involving number of candidates and to their stand that once the applicants have accepted the application of the same normalization formula in Tier 1 level examination of CGLE-2019, their objection to application of same normalization formula in Tier 2 level examination is not sustainable in the eyes of law. 20 OA No.925/2021
15. In the rejoinder therein, the applicants have stated that the result of Tier 2 examination was announced by the official respondents in the month of February 2021 itself and at that stage, official respondents did not release the marks of the candidates though the official respondents released a write up on 19.2.2021 (Annexure A/6) wherein they have stated that the marks of qualified/non-qualified candidates in Tier 2 examination will be uploaded on the website of the Commission together with the marks of Tier 3 examination after declaration of result of Tier 3 and the marks of Tier 2 examination were not released by the respondents to avoid public scrutiny. The applicants have reiterated that application of normalization formula has led to absurdity in as much as in Maths paper, being of total 200 marks, the marks of the candidates, whose names are mentioned in para 5 of the rejoinder, have gone down to -242, -226 - 207.6, -169 and -153. Similarly, they have also stated that there was some increase in the range of 50-100 in the marks of a few candidates declared to be successful after application of the normalization formula. The applicants have further reiterated their reliance on the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh 21 OA No.925/2021 (supra). However, the applicants have not disputed the fact that the results of Tier 2 and Tier 3 examinations have been released subsequently. Moreover, the right up (Annexure A/6), referred to by the applicants, is not under challenge in the present OA.
16. Shri Gyanendra Singh, learned counsel for the official respondents has also placed on record a compilation of following judgments:-
(i) Judgment dated 3.11.2020 of the Hon'ble Supreme Court in Civil Appeal No.3602/2020, titled Chief Manager, Punjab National Bank and another vs. Anit Kumar Das;
(ii) Judgment dated 28.9.2011 of the Hon'ble Supreme Court in Civil Appeal No.8343/2011, titled Bedanga Talukadar vs. Saifudaullah Khan and others;
(iii) Judgment dated 19.6.2020 of the Hon'ble Supreme Court in Civil Appeal No.452/2020, titled S. Kasi vs. State through the Inspector of Police Samaynallur Police Station Madural District;22 OA No.925/2021
(iv) Judgment dated 1.7.2021 of the Hon'ble High Court of Allahabad in Writ A No.6334/2021, titled Deepak Kumar and 62 others vs. UOI and others; and
(v) Judgment dated 1.8.2018 of the Tribunal of this Bench in OA No.3526/2017, titled Raju Kumar vs. UOI and others.
17. On behalf of respondent nos.3 to 33, a compilation of the following judgments has been placed on record in support of their arguments that the present OA is not tenable:-
(i) Judgment dated 1.8.2018 of the Tribunal of this Bench in OA No.3256/2017, titled Raju Kumar vs. UOI and others;
(ii) Judgment dated 1.7.2021 of the Hon'ble High Court of Allahabad in Writ A No.6334/2021, titled Deepak Kumar and 62 others vs. UOI and others;
(iii) Judgment dated 1.6.2021 of the Hon'ble High Court of Telangana in Civil Appeal No.809/2019, titled Lubna Tabassum and 13 others vs. State of Telangana and another;23 OA No.925/2021
(iv) Judgment of the Hon'ble Supreme Court in Union of India and others vs. S. Vinodh Kumar and others, reported in (2007) 8 SCC 100;
(v) Judgment of the Hon'ble Supreme Court in Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand & others, reported in (2011) 1 SCC 150;
(vi) Judgment of the Hon'ble Supreme Court in Sunil Kumar and others vs. Bihar Public Service Commission and others, reported in (2016) 2 SCC 495;
(vii) Judgment dated 7.1.2022 of the Hon'ble Supreme Court in Civil Appeal No.228/2022, titled State of UP and others vs. Atul Kumar Dwivedi and others; and
(viii) Judgment of the Hon'ble Supreme Court in Sajeesh K. Babu vs. N.K. Santosh, reported in (2012) 12 SCC 106.
18. We have heard the learned counsels for the parties at length. We have perused the pleadings on record and have gone through the judgments referred to and relied upon 24 OA No.925/2021 and have considered the submissions made on behalf of the parties.
19. It is not in dispute that the applicants have participated in the selection process pursuant to the notice dated 22.10.2019 (Annexure A1) regarding CGLE- 2019. The conditions of the said notice and/or the official respondents' decision regarding application of normalization by using the formula notified vide notice dated 7.2.2019 are not in challenge. The applicants have cleared Tier 1 examination successfully and in the said examination as well the same formula of normalization was applied by the respondents and the applicants had no grievance against the application of the said formula. The grievance of the applicants is only to the effect that the official respondent nos.1 and 2 have not disclosed the marks of Tier 2 examination and secondly, the normalization of marks has been applied in a manner leading to final score of the applicants gone done to -153 to -242 out of 200 in case of some of the candidates and also there is very high increase in the final score of certain candidates. Applicants say that this should be construed as arbitrary and absurd and therefore, in view of the 25 OA No.925/2021 judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra), the OA deserves to be allowed.
20. On the other hand, learned counsels for the official respondents have argued that application of normalization of marks has been appreciated by this Tribunal as well as by the Hon'ble High Court(s) and Hon'ble Supreme Court. The said formula in this regard vide the notification dated 7.2.2019 (Annexure A2) was unsuccessfully challenged before the Hon'ble High Court of Judicature at Allahabad in the case of Deepak Kumar (supra) and has been applied uniformly and once the applicants in spite of notice about the same have not only participated in the selection process but also might have got the benefits thereof in Tier 1 examination, are estopped from challenging the same after they have failed in the Tier 2 and Tier 3 examinations. They have further argued that the judgment of the Hon'ble Apex Court in Sanjay Singh (supra) has been considered by the Hon'ble High Court of Judicature at Allahabad in Deepak Kumar (supra) as well as by the Hon'ble Apex Court in Sunil Kumar (supra) and in view of the facts being different in the case of Sanjay Singh (supra) and those in the present case, the judgment 26 OA No.925/2021 of the Hon'ble Apex Court in Sanjay Singh (supra) is of no help to the applicants. They have further argued that merely for the reason that after application of the said formula about normalization, the final score of the applicants have substantially gone down will not warrant interference by this Tribunal. It is further argued by the learned counsel for the respondents that aforesaid normalization formula has been prepared by keeping in view the opinions of the experts and the results have been prepared keeping in view the relevant data by the experts, interference in the matter by this Tribunal while exercising jurisdiction of judicial review is not warranted. They have invited our attention to para 11 of the Order/Judgment dated 26.2.2021 of the Hon'ble High Court of Kerala at Ernakulam in (C) No.21382/2019(W) and other connected cases, titled Arun V.P. and others vs. Union of India and SSC (supra) wherein it is held as under:-
"11. Having considered the contentions advanced in the counter affidavit, I find that the selection was a nation wide procedure in which more than 30 lakh candidates participated in the computer based examinations. It is stated that the examination was conducted on 18 days in 54 shifts. Since it was found that there were discrepancies in the level of difficulty of the papers in the different shifts, the Staff 27 OA No.925/2021 Selection Commission found it necessary to adopt a normalization procedure. Such procedure was duly notified and a corrigendum was also issued to the selection notice. In the absence of any allegations of mala fides, I am of the clear opinion that the modalities for conduct of the selection and for the assessment of candidates are matters which are well within the powers of the Staff Selection Commission and a normalization procedure would not normally be open to judicial review. The reliance placed by the petitioners on the decisions of the Allahabad High Court are completely misconceived, in view of the fact that the said case involved a case where specific criteria and cut off marks prescribed by the Recruitment Rule itself, which had been violated by the Public Service Commission while conducting the selection."
21. In Chief Manager, Punjab National Bank and another vs. Anit Kumar Das (supra), the applications were invited by the appellant - Bank for the post of Peon by publishing an advertisement in the local newspaper. The eligibility criteria mentioned in the said advertisement was that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English. It specifically provided that a candidate should not be a Graduate as on 01.01.2016. A candidate was also required to submit the bio-data as per the prescribed format. The respondent therein, though a Graduate, applied for the said post. However, neither in the 28 OA No.925/2021 application nor in the bio-data, he disclosed that he was a graduate. At the time of document verification subsequently it came to the notice of the appellant - Bank that the respondent therein was a graduate and the said respondent had suppressed of his being a graduate and his candidature was cancelled by the appellant - Bank. Learned Single Judge of the Hon'ble High Court directed the said Bank to allow the respondent therein to discharge his duties as Peon and aggrieved by the same, the appellant - Bank preferred a writ appeal before the Division Bench of the Hon'ble High Court and the Division Bench has dismissed the said writ appeal and thus the matter was taken by the appellant -Bank before the Hon'ble Supreme Court. The facts and circumstances of the said case entirely being different to that of the case in hand and as such there is no application of the said judgment. The judgment of the Hon'ble Supreme Court in Bedanga Talukadar vs. Saifudaullah Khan and others (supra) referred to and relied upon by Shri Gyanendra Singh, learned counsel for the official respondents is also not applicable to the facts of the present case, though in para 28 thereof, the Hon'ble Supreme Court held as under:-
29 OA No.925/2021
"28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India."
We fail to understand in what context the judgment of the Hon'ble Supreme Court in the case of S. Kasi vs. State through the Inspector of Police Samaynallur Police Station Madural District (supra) has been relied upon by Shri Singh, learned counsel for the official respondents in as much as in the very first paragraph of the said 30 OA No.925/2021 judgment, it is recorded by the Hon'ble Supreme Court that the said appeal has been filed questioning the judgment of Madurai Bench of Hon'ble Madras High Court by which the bail application of the appellant has been dismissed. In the case of Deepak Kumar (supra), the Hon'ble High Court of Judicature at Allahabad has considered the judgment of the Hon'ble Apex Court in the case of Sanjay Singh (supra). In the said case before the Hon'ble High Court, the petitioner has challenged the Corrigendum Notice date 08.02.2019 and 07.02.2019 (Annexure A/2) and they have also prayed for a direction to declare actual raw marks and normalization marks of all selected and non-selected candidates. It was also brought before the Hon'ble High Court that private respondent no.5 to 9 therein had secured lesser marks than the petitioners. The last two paragraphs of the said Order/Judgement of the Hon'ble High Court read as under:-
"Before concluding, this Court would like to observe that in large scale recruitments where more than lakhs of candidates have participated and the exercise has already concluded with selection of more than 50,000 candidates the Court would be reluctant to 18 entertain routine challenges to the recruitment unless credible materials are placed before the 31 OA No.925/2021 Court for such challenge. It is otherwise settled that not every trivial departure from the scheme would justify interference with such large scale recruitment. Some play in the joints would have to be conceded to the Commission and unless the sanctity of the recruitment is prima facie shown to have been compromised the challenge need not be entertained. The services of selected constables would otherwise be urgently required in national interest. This Court, therefore, would not like to entertain the challenge merely for the asking and keep the petition pending. Challenge for the sake of challenge is not to be entertained so as to keep the Sword of Damocles hanging upon thousands of selected candidates.
In light of the above deliberations and discussions this Court finds no error in the recruitment in question on the basis of grounds urged in this petition. Writ petition lacks merit and is, accordingly, dismissed. Costs made easy."
Shri Gyanendra Singh, learned counsel for official respondents, has submitted that a similar equivalent methodology of CGLE-2018 has been appreciated by the Division Bench of this Tribunal in Order/Judgment dated 1.8.2018 in the case of Raju Kumar (supra). Shri Singh, learned counsel for the respondents has also placed reliance upon the judgment of the Hon'ble Apex Court in Ramesh Chandra Shah and others vs. Anil Joshi and others in Civil Appeal Nos.2802-2804 of 2013, decided on 3.4.2013, para 24 thereof reads as under:- 32 OA No.925/2021
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
22. Ms. Tanya Agarwal appearing for Shri Durga Dass Vashist, learned counsel for private respondents has adopted the arguments advanced by Shri Gyanendra Singh and Shri S.N. Verma, learned counsels appearing for official respondents. In addition to that, she has added that normalization formula was made applicable in CGLE- 2019 keeping in view the Order/Judgment dated 1.8.2018 of this Tribunal in the case of Raju Kumar (supra). She has further argued that challenge to normalization formula has been rejected by the Hon'ble High Court of Judicature at Allahabad in the case of Deepak Kumar (supra). She has further added that the normalization formula has been accepted and encouraged by the Hon'ble Courts in multi-shifts examination(s) to bring the candidates to level playing field and in this regard, she has referred to the judgment of the Hon'ble High Court of 33 OA No.925/2021 Telangana in Lubna Tabassum and 13 others vs. State of Telangana and another (supra). She has further argued that once the applicants have not only participated in the selection process, knowing fully the procedure, including the formula to be applied with regard to normalization of marks in view of multi-shifts, they are estopped from challenging the same. Moreso, when the said formula has been applied by the respondents uniformly and including in Tier 1 examination in which after application of said normalization, the applicants have cleared the Tier 1 examination. In this regard, she has referred to and relied upon the judgment of the Hon'be Supreme Court in the case of Union of India and others vs. S. Vinodh Kumar and others, reported in (2007) 8 SCC 100, paras 18 and 19 thereof read as under:-
8. It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
(See Munindra Kumar and Others v. Rajiv Govil and Others - AIR 1991 SC 1607). (See also Rashmi Mishra v. Madhya Pradesh Public Service Commission and Others 2006 (11) SCALE 5)
19. In Chandra Prakash Tiwari and Others v. Shakuntala Shukla and Others [(2002) 6 SCC 127], it was held :
34 OA No.925/2021
"32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. 1986 Supp SCC 285, a three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise."
It was further observed :
"34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the 35 OA No.925/2021 process of interview was unfair or there was some lacuna in the process."
23. In paras 24, 25 and 28 in Vijendra Kumar Verma vs Public Service Commission, Uttarakhand and others, reported in (2011) 1 SCC 150, the Hon'ble Supreme Court has held as under:-
"24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office Operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.
25. In this connection, we may refer to the decision of the Supreme Court in G. Sarana (Dr.) Vs. University of Lucknow & Ors. reported in (1976) 3 SCC 585 wherein also a similar 36 OA No.925/2021 stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15.... He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
"28. Besides, in K.H. Siraj vs. High Court of Kerala and Others reported in (2006) 6 SCC 395 in paragraph 72 and 74 it was held that candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel."
24. The judgment of the Hon'ble Apex Court in Sanjay Singh (supra) had been considered by the Hon'ble Apex Court in the case of Sunil Kumar (supra) and in paras 19 and 20 held as under:-
"19. The entire of the discussion and conclusions in Sanjay Singh (supra) was with regard to the question of the suitability of the scaling system to an examination where the question papers were compulsory and common to all candidates. The deficiencies 37 OA No.925/2021 and shortcomings of the scaling method as pointed out and extracted above were in the above context. But did Sanjay Singh (supra) lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the context in which the conclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh (supra) could be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations; evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects common to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh (supra) did not decide that to such an examination i.e. where the papers are common the system of moderation must be applied and to an examination where the papers/subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh (supra) to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be confined to the facts of the case, rendered upon a consideration of the relevant Service Rules prescribing a particular syllabus.
20. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth consideration of questions that are 38 OA No.925/2021 more suitable for the experts in the field.
Holding of public examinations involving wide and varied subjects/disciplines is a complex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi-disciplinary examination format is one such fine issue that was coincidentally noticed in Sanjay Singh (supra). A conscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination; the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of consideration. All such questions and, may be, several others not identified herein are required to be considered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, normally, limited to instances of arbitrary or malafide exercise of power."
25. From the pleadings on record, it is apparent that a large number of candidates appeared in the said examination conducted by the Commission in multi-shifts and the procedure for allocation of examination shift to the candidates was random. In view of the fact that in 39 OA No.925/2021 lakhs, including the applicants, candidates applied for CGLE-2019 and more than one lakh candidates appeared in Tier 1. The advertisement notice and the notice dated 7.2.2019 have been known to the applicants and they have not only voluntarily participated in the selection process but pursuant to the said notice, the normalization has been applied by the respondents uniformly and the applicants had been successful in Tier 1. However, when the same formula was applied, the final scores of the applicants have got done substantially. Merely for this reason, the action of the Commission cannot be treated as arbitrary or illegal, more so, in view of the law laid down by the Hon'ble High Court(s) and Hon'ble Supreme Court, referred to hereinabove. Accordingly, we are of the considered view that the matter does not require interference by this Tribunal.
26. In view of the aforesaid, we find no merit in the OA and the same is accordingly dismissed. However, there shall be no order as to costs.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/