Gujarat High Court
Patel Vimalkumar Kantilal And Ors. vs Gujarat Public Service Commission And ... on 26 February, 2003
Equivalent citations: (2003)2GLR1102
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. Rule. Concerned learned Counsel for respondents appear and waive service of Rule. With the consent of learned Counsels for parties matters are finally heard.
2. The principal question involved in these group of petitions is : Whether it is open to the Gujarat Public Service Commission ("G.P.S.C." for short) to apply the scaling method to raw marks scored by the candidates in optional subjects in the competitive examination for Class I and Class II Posts? and if yes, whether the method applied is on rational basis or arbitrary? The another point which incidentally arises for the consideration of this Court is regarding the declaration of the marks scored by the candidate either at preliminary examination or at main examination so as to enable the candidate concerned to apply for rechecking of marks, if it is so desired by the candidate after such declaration.
3. The short facts of the case are that the. petitioners are the candidates who appeared in the competitive examination for the post of Class I and Class II Officers pursuant to the advertisement issued by the G.P.S.C. The total number of posts advertised is 164. In the present group of petitions, the petitioners can be categorised mainly into two groups. The first group of the petitions are filed by the petitioners who appeared in the preliminary test and at the preliminary test in optional subjects the method of scaling of marks was applied by the G.P.S.C. and this group of petitioners are challenging the application of method of scaling and marks at preliminary examination and praying for declaration of result of preliminary examination. This Court while admitting those petitions by interim order directed the G.P.S.C. to allow the petitioners to appear in the main examination without prejudice to the rights and contentions of petitioners subject to final outcome of the petitions. After appearing in the main examination such petitioners have preferred civil applications in the concerned main Special Civil Applications praying for appropriate directions to G.P.S.C. to allow them to appear at the oral interview. The second group of petitions are filed by the petitioners who appeared at the main examination and when they were not called for interview only they came to know that scaling method in optional subjects upon the raw marks scored by them is applied by the G.P.S.C. at the main examination and they have approached this Court challenging the legality and validity of method applied for scaling in the main examination. As stated hereinabove, the petitioners may either be referred as First category of petitioners or Second category of petitioners, as the case may be, wherever distinction for such aspect is required. The common, consequently, in both the group of petitions is the method of scaling applied by G.P.S.C. either at preliminary examination or at the main examination.
4. It appears that the number of posts advertised is 164 and pursuant to such advertisement, ultimately, 70,324 candidates appeared at the preliminary examination and 4,766 candidates were declared passed at the preliminary examination/test. The first category of petitioners did not obtain qualifying marks at the preliminary examination. As per Gujarat Civil Services (Class I and Class II) Competitive Examination Rules, 2000 (hereinafter referred to as "Rules") a candidate who passes preliminary examination and obtains qualifying marks shall be allowed to appear in the main examination. 4,776 candidates appeared at the main examination and 815 candidates who passed at the main examination and also obtained qualifying marks have been called for interview. All these petitioners of first and second category who did not obtain qualifying marks at the main examination have not been called for interview.
5. There is no dispute on the point that the G.P.S.C. has applied the scaling method in optional subjects upon the raw marks scored by each candidate and the G.P.S.C. on the contrary has declared accordingly. The affidavit-in-reply has been filed in Spl.C.A. No. 12575 of 2001 by Mr. Lalitbhai N. Patel, Joint Secretary, G.P.S.C. and as per the statement made by Mr. D.N. Patel, learned Counsel appearing on behalf of G.P.S.C. in all matters the said affidavit-in-reply filed in Spl. C.A. No. 12575 of 2001 is to be treated as common affidavit-in-reply in respect of first category of petitioners for justifying the scaling method at the preliminary examination and the very affidavit-in-reply is also to be treated as defence of G.P.S.C. in the petitions preferred by the second category of petitioners for justifying the scaling method at the main examination. In the said affidavit-in-reply, which is filed in Spl.C.A. No. 12575 of 2001 and to be treated as common in all the petitions, as stated hereinabove, the statement made is as under :
"This was done with a purpose to equate the marks obtained in preliminary examination by different candidates having chosen different subjects. Thus, the purpose was to render marks obtained "comparable" and thereby raw marks of optional subjects (marks obtained by the candidates in Part II of preliminary examination) obtained by the candidates are scaled by applying a formula. Thereafter, the result is prepared on the basis of aggregate marks of General Studies added to the scaled marks of optional subjects. Thereafter, the list of candidates in seriatim is declared on the basis of their aggregate marks. In view of this fact, I deny the averment of the petitioner that "candidates with less marks than the petitioner are permitted to appear in the main examination."
Mr. D.N. Patel, learned Counsel appearing on behalf of G.P.S.C. has made a statement at Bar that the same be treated on the part of G.P.S.C. to apply scaling method in optional subjects at the main examination and with the consent of all the Counsels appearing on behalf of petitioners the statement is recorded and the matter is examined accordingly.
6. Before the rival contentions of the parties are examined, it is necessary to take note that conducting of examination in the present case is governed by the Rules which have come into force on 19-10-2000. Rule 4 of the said Rules provides for holding of two examinations, namely, preliminary examination (objective type) and main examination (Written and Interview Test). Sub-rule (2) of Rule 4 provides that the preliminary examination and the main examination shall be held in such a manner as specified in Schedule II. Schedule II and more particularly Section I for the Preliminary Examination provides that the candidates shall be declared qualified for admission to the main examination on the basis of marks obtained in the preliminary examination. So far as main examination is concerned it has been provided that the candidate who obtains such minimum qualifying marks as may be fixed by the Commission at the main examination shall be called for interview/test. Section II of Schedule II provides one subject of General Studies of 150 marks which is compulsory and one subject of 200 marks from 27 optional subjects. Section III of Schedule II provides for Gujarati, General English and General Studies each of 200 marks are compulsory subjects and two optional subjects of 200 marks each from amongst 28 optional subjects. Various notes under Section III of the Schedule inter alia provides for the standard of Gujarati paper equivalent to Gujarati (Higher level) 12th standard of Gujarat Secondary Education Board, English paper equivalent to English Subject (Lower Level) of 12th standard of Gujarat Secondary Education Board, standard and course contents of the syllabi for general studies paper and optional subject shall be of a degree level. The syllabus for each of the paper shall be such as may be prescribed and notified by the Commission. The candidates shall not be allowed to offer the combination of certain optional subjects, namely, Mathematics and Statistics, Politics and International Relation and Public Administration, Public Administration and Management, Commerce, Accounts and Management, Agriculture and Animal Husbandry and Veterinary Science, Civil Engineering, Electrical Engineering, and Mechanical Engineering. Rule 6 which is relevant for the purpose of these petition reads as under :
"6.(1) Subject to Sub-rules (2), (3) and (4) the medium of the examination shall be Gujarati.
(2) The answers to the question paper of General English shall be given in English language and in optional papers relating to other languages shall be given in the respective languages;
(3) The answers to questions on optional paper relating to Sanskrit Literature may be given in Sanskrit or in Gujarat.
(4) The answers to questions on the paper of Geology, Agriculture, Civil Engineering, Electrical Engineering, Mechanical Engineering, Medical Science, Animal Husbandry and Veterinary Science, Management and Public Administration may be given in either Gujarati or English."
Rule 14 provides for the decision of the Commission to be final as to the eligibility of candidates for permission to main examination.
Rule 16 provides that the candidates who score qualifying marks as may be fixed by the Commission in the preliminary examination shall be allowed to appear in main examination.
Rule 17 which is relevant for the purpose of these petitions reads as under :
"17. The names of candidates shall be arranged by the Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the main examination (written) and interview test and in that order the Commission shall recommend the qualified candidates for appointment to the extent of the number of vacancies to be filled in :
Provided further that where the vacancies reserved for the candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Class (including Nomadic Tribes and Denotified Tribes) cannot be filled up on the basis of qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up the deficiency in the reserved posts."
The pertinent aspect is that the language used is "merit on the basis of aggregate marks finally awarded to each candidate in the main examination (written and interview/test).
Rules 19, 20 and 21 which are relevant for the purpose of these petitions read as under :
"19.(1) The Commission shall publish, in the Official Gazette the result of the examination in a single list of Class I and Class II posts.
(2)(a) The result of the candidates, whose names are to be recommended to the Government for the appointment to the posts of Class I and Class II shall be arranged according to the order of merits of candidates along with the seat number and the total marks obtained by each candidate.
(b) The Commission shall also display on its notice board the result of unsuccessful candidates containing the names, seat number and total marks obtained by each of the candidate.
(3) The Commission shall send a copy of result so published in the Official Gazette to the Government.
20. A candidate who desires to have his marks of preliminary examination rechecked, may apply to the Commission along with such fees as may be fixed by the Commission for each paper within a period of 15 days from the date of declaration of result of the preliminary examination.
21.(1) A candidate who desires to have his marks of main examination rechecked may apply to the Commission along with such fee as may be fixed by the Commission for each paper within a period of forty-five days from the date of declaration of the final result of the main examination.
(2) A candidate who desires to have the marks sheet of the main examination shall apply to the Commission along with such fees as may be fixed by the Commission within a period of fifteen days from the date of declaration of the final result."
Rule 22 provides for forwarding the result to Government and the list of candidates who are recommended for appointment.
7. The first grievance voiced on behalf of the petitioners of both these categories is in respect of non-declaration of result or the marks obtained by the candidate in the preliminary examination or the main examination, as the case may be. In my view, there is considerable force in the contention raised on behalf of the petitioners in challenging the action of the G.P.S.C. in not declaring the marks secured by the candidate of both the aforesaid examinations. Mr. D.N. Patel, learned Counsel appearing for the G.P.S.C. submitted that there are different opinions regarding disclosure of marks to the candidate and the obligation on the part of G.P.S.C. However, he made the statement at Bar that the G.P.S.C. shall abide by the direction as may be given by this Court for declaration of marks and the G.P.S.C. shall not raise the issue for such purpose.
8. In my view, as such, G.P.S.C. ought not to have waited for the direction of this Court and the perusal of Rule 6 itself provides for the declaration of result of unsuccessful candidates, seat numbers and total marks obtained by each candidate. Since there is an express provision made for rechecking of marks at preliminary examination as per Rule 20 and at the main examination at Rule 21, on harmonious construction of Rules 19, 20 & 21 it appears that it is obligatory on the part of the Commission to display on its notice board the result of unsuccessful candidates with their names, seat numbers and total marks obtained at the time while declaring the result of preliminary examination and also at the time while declaring the result of main examination. If such construction of Rules 19, 20 & 21 is not made and if it is read that the total marks and the result of unsuccessful candidates has to be declared after the completion of process of interview/test then Rules 20 & 21 shall be rendered redundant. Therefore, it is required that after completion of preliminary examinations or the main examination, as the case may be if the marks scored by the candidates are declared the same would enable the candidate to apply for rechecking either of the marks of preliminary examination or of the marks of main examination. Even otherwise also the construction and interpretation of rules in my view would be in the larger public interest to have the transparency in conducting of examinations of public administration and public employment. If the result is declared with the marks, more particularly, of the unsuccessful candidates, then only they would be able to know as to whether they should apply for rechecking or not. It may be that the Commission may make such declaration of marks fixed for qualifying standard but in any case it should be declared prior to the deemed date of next step in the selection, namely, that the result of preliminary examination must be declared prior to deemed date of conducting main examination and the result of main examination with the marks should be declared before the deemed date of oral interview. Since learned Counsel for G.P.S.C. has made statement at Bar for inviting directions from this Court as stated hereinabove I find it proper not to discuss the said aspects further in detail but suffice it to say that the approach on the part of G.P.S.C. in not declaring the result with the marks to the candidate concerned runs counter to the statutory provisions and is against the principles of transparencies in the public examination of public administration and public employment and the action to that extent of the G.P.S.C. of not declaring the result of marks of candidates concerned deserves to be deprecated and quashed. The aforesaid, in my view, would be sufficient for the point which incidentally has arisen for consideration of the Court.
9. The aforesaid takes me to examine the contentions raised on behalf of petitioners for challenging the power of G.P.S.C. to apply method of scaling, and the method and manner applied by G.P.S.C. for scaling and thereby to deny the equal opportunity to candidates in the public employment for public administration. Learned Counsel M/s. K. B. Pujara, Mukul Sinha, R.K. Mishra, Y.S. Lakhani and Karia have made submissions on behalf of petitioners. Mr. Pujara has mainly contended that there is no authority to travel beyond the rules by the G.P.S.C. and in his submission there is no power to apply scaling method. He submitted that even if it is assumed for the sake of argument that there is power then also it should have been notified either in the advertisement or in the rules and in the absence thereof it results into modifying various stipulations of the advertisement and making alteration in the eligibility criteria. Mr. Pujara relied on the judgment, dated 11-12-2002 of the Division Bench of Allahabad High Court in the matter of Subhash Chandra Pandey v. State of U.P. and Ors., to contend that the application of scaling is creating absurd results and hence method of applying scaling of marks by Uttar Pradesh Public Service Commission was struck down by the Division Bench of Allahabad High Court and he submitted that the S.L.P. against the said judgment is also dismissed by the Supreme Court. Mr. Mukul Sinha while supporting the contention of Mr. Pujara has submitted that the word "marks obtained" must receive its natural meaning which would be raw marks and not scaled marks. Mr. Sinha also submitted that even the formula which has been applied for the purpose of scaling by G.P.S.C. is not as per the recommendation by Mr. Natarajan's book upon which reliance has been placed by the G.P.S.C. He submitted that there is total non-application of mind on the part of G.P.S.C. in applying the formula which has brought about absurd results. Mr. Sinha also submitted that the purpose of any competitive examination is to examine the competitive merits and applying statistical formula results into conversion of competitive merit which creates drastic results. The conversion formula, in his submission cannot be applied for assessing competitive merit of candidate concerned. Mr. Sinha also submitted that when the scaling method is applied and for the first time as admitted by G.P.S.C. in the competitive examination of public administration the burden is upon the G.P.S.C. to justify the scaling method and in his submission there is absolutely no justification in applying the scaling method in optional subjects. He submitted that there is no material placed before the Court as to why such comparison of the marks was necessary and the material which has weighed with the G.P.S.C. for applying scaling method in optional subjects. In furtherance to his contention, he has given an example by adding one optional subject as "Greek" and he submitted that if the candidate who has scored "O" marks in Greek language and if the formula which is applied by the G.P.S.C. is made applicable for the purpose of scaling taking base of total number of candidates appearing in the Greek language are 2, then in that case the scaled marks shall be "1" though the candidate has secured "O" marks in the said subject. Therefore, in his contention same brings about absurd result by applying scaling method. He also submitted that the principle of providing optional subject as per rule as a consequence of applying scaling method in the optional subjects is not only frustrated but the benefit is also taken away and in his submission by applying scaling method unequal candidates are treated as equal which violates Articles 14 & 16 of the Constitution of India. Mr. R.K. Mishra submitted that the strict interpretation of rule is required to be made and when the rule itself is clear it cannot be read so as to include application of scaling while awarding marks. Mr. Lakhani submitted that since the actual raw marks are not declared the correct picture is not emerging and in his contention on account of scaling the meritorious candidates are pushed down as against non-meritorious candidates. Mr. Paresh Upadhyay submitted that the scaling would be required only when the raw marks are not comparable. In his submission raw marks are comparable and therefore it was not at all necessary for applying scaling method. He submitted that the G.P.S.C. has blindly adopted the formula by mechanical exercise of power as discussed in the judgment of Rajasthan High Court. Mr. Karia has supported the contentions raised on behalf of petitioners.
10. Learned Counsel Mr. Patel appearing for the G.P.S.C. has submitted that the scaling is a well accepted modern method of comparing the merit of the candidates inter se in different optional subjects. In his submission a candidate securing raw marks in History cannot be compared on the basis of raw marks secured by another candidate in Science subject, and therefore, scaling is required. Mr. Patel submitted that the Division Bench of this Court in its judgment reported in 1987 (1) GLR 157 has accepted the method of scaling applied by U.P.S.C. as a modern method and he also submitted that the Division Bench of Rajasthan High Court in its unreported judgment, dated 19-8-1994 in case of Maheshkumar and Ors. v. State of Rajasthan and Ors., has also confirmed the application of method of scaling by the R.P.S.C. and against the said judgment of the Division Bench of Rajasthan High Court, S.L,P. is also rejected. Mr. Patel submitted that the method of scaling examined by the Division Bench of Allahabad High Court was different and was wrong because it was on the basis of assessment of one examiner only as the model which is not in the present case. He submitted that the method applied by the G.P.S.C. is as per the recommendation of Mr. Natarajan in the book called "Scaling Techniques, What, Why and How" and the very method was applied by R.P.S.C. and its legality and validity is accepted by the Division Bench of Rajasthan High Court. He submitted that the contentions which are raised on behalf of the petitioners are in terms negatived by the Division Bench of Rajasthan High Court and therefore there is nothing wrong in applying scaling for assessing comparative merit. He also submitted that as per well settled principles of law this Court would normally not substitute its wisdom in the field of education and of conducting examination and they are left to the expert bodies constituted for such purpose. Mr. Patel during the course of his arguments has submitted that even by applying scaling method the merit order within the subject is not being altered until while considering the total number of marks in all subjects are considered. He also submitted that the majority of candidates who are meritorious are not affected by applying scaling method. In furtherance to his submission Mr. Patel has made statement at Bar that after applying scaling method on the total aggregate marks 815 candidates are called for interview. If the basis would have been raw marks number of candidates who were required to be called and interviewed would be 832 because for a particular number of marks there may be more than one candidate in terms of raw marks. He further stated that out of the candidates called on the basis of scaled marks or on the basis of raw marks 698 candidates are common, in other words, whether system of raw marks or system of scaling is applied, it makes no difference to their merit and they stand in the merit upto Sl. No. 698. He further stated that if the scaling method is approved by the Court then 117 candidates will be required to be called who have been called for interview in addition to 698 candidates will enter into interview itself, and if the scaling method is not approved and order is passed for preparing merit order on the basis of raw marks then in that case 134 candidates shall be required to be called for interview itself and the aforesaid 117 candidates shall go out from the interview itself.
11. He clarified that there is a difference of 117 candidates as per the scaled marks as against 134 candidates on the basis of raw marks. He also submitted that the aforesaid picture is in general irrespective of the fact that whether the candidate has preferred petition before this Court or not. Mr. Patel has further stated that in all there are 320 candidates before the Court who have preferred petitions either in group or individually and out of the petitioners before the Court if the method of scaling is upheld by the Court, then the position shall remain unaltered but if the Court gives direction to G.P.S.C. to call the candidates on the basis of raw marks restricting to the case of the petitioners before the Court then only 19 candidates who are petitioners before the Court shall be eligible for interview itself on the basis of raw marks and all other petitioners who have secured less marks than the qualifying marks at the examination are not in any case eligible for interview itself. He submitted that therefore there is no much difference in the merit or all the meritorious students are not affected in any manner seriously because in any case even after the interview itself the list to be prepared would be only of 255 candidates as against total number of candidates to be interviewed which is of 815 as per the scaled marks or 832 as per raw marks, as the case may be.
12. Ms. Sonal Vyas appearing on behalf of candidates who have been called for interview after applying the scaling method and who are allowed to be joined as respondents in Spl.C.A. No. 310 of 2003 has supported and adopted the stand taken by the G.P.S.C. in applying the method of scaling at the marks.
13. In view of the aforesaid contentions raised so far as the application of scaling method by the G.P.S.C. is concerned, in my view, the first contention which is required to be considered is regarding the power to apply the scaling method by the G.P.S.C. As observed earlier the contention on behalf of the petitioners is that there, is no authority on the part of the G.P.S.C. to apply scaling method since the rules do not provide for application of such scaling. Reliance was placed upon the rules on behalf of the petitioners to show that there is reference to the marks obtained and marks obtained necessarily mean the raw marks and not scaled marks. It was also contended that by plain and simple reading of rules the meaning can be given by interpretation of rules and the Court would not add words. In my view such contention deserves to be rejected on the face of it because as per Article 320 of the Constitution of India the Union and State Public Service Commissions are enjoined with the duty to conduct the examinations and the Commissions are constitutional bodies for the purpose of conducting examinations. All actions from the inception and until the declaration of results of all types of tests which may be found proper by the Commission are put under the direct control and supervision of G.P.S.C. Rule cannot be read as exhaustive for the purpose of conducting of examinations. There may be large number of eventualities which are not and/or which may not have been envisaged under the Rules, but it will be within the control and power of the Commission to decide the modalities and the method to be adopted for such purpose. Therefore, I cannot accept the contention that the marks obtained is necessarily to be meant as raw marks and not scaled marks. In any system of examination the moderation is a well accepted principle for the purpose of getting the best result through the examiner. If the argument is accepted as that of raw marks then in that case even moderation will have to be excluded and thereafter marks assigned by the examiner are to be accepted as final. Such can never be the intention of the rule making authority and such construction, in my view, would run counter to the purpose for which the Public Service Commissions are constituted. Therefore, in any view, the word "marks" as referred to in the rules can be read as marks finally awarded or approved by the G.P.S.C. and it cannot be read as raw marks awarded by examiner concerned. Even reference to Rule 17 shows that the language used is "aggregate marks finally awarded to each candidate". It would be worthwhile to take reference to the judgment of the Division Bench of the Rajasthan High Court in case of Maheshkumar Khandelwal (supra). Even in the case before the Rajasthan High Court such a contention was raised and reference to the same was made at Para 44 of the judgment of the Division Bench of Rajasthan wherein view taken is that the scaled marks are also marks obtained for the purpose of said Rules and scaling of marks does not violate the scheme of the examination. Learned Counsel Mr. Pujara appearing for the petitioners has relied upon the judgment of the Apex Court in the matter of State of U. P. v. Shyam Sunder, reported in 2000 (10) SCC 49 and in the matter of Praveen Singh v. State of Punjab and Ors., reported in AIR 2001 SC 152 as well as Mr. Mishra also relied on the judgments of the Apex Court reported in the matter of Union of India v. Sankalchand Himmatlal Sheth and Anr., reported in AIR 1977 SC 2328, in the matter of Chief Justice of A.P. v. L.V.A, Dikshitulu, reported in AIR 1979 SC 193 and in the matter of Om Prakash Gupta v. Dig Vijendrapal Gupta, reported in AIR 1982 SC 1230 to contend that the strict interpretation is called for on the word "marks" and if the scored marks are to be considered it is a deviation from the norms settled for the purpose of awarding marks. In my view, there is no question of interpreting the words "marks" as sought to be canvassed by the learned Counsel for the petitioners. It is always left to the body which conducts the examination to decide the method or the manner of assessment of marks. Even if the examiner has awarded marks it is now well settled that the system of moderation is always permissible with a view to reduce the difference amongst the assessment between two examiners. When the number of students and number of examiners are also more the assessment may differ from one examiner to another examiner. As observed earlier, the scheme for conducting examination as provided under the rules cannot be exhaustive in all respects. In my view there is no express provision made in the rules about method and manner of assessment of marks, and therefore, in the absence thereof it is to be deemed that such scheme is left to the discretion and wisdom of Public Service Commission which is conducting the examination. It cannot be read that since there is no provision under the rules there is no authority with the G.P.S.C. to decide the modality or mode of assessment of marks. Similarly, in the advertisement for such purpose in my view all steps are not required to be mentioned which can be undertaken for the purpose of conducting the examination or for the purpose of deciding the modalities for assessment of marks. The judgments upon which reliance placed by Mr. Pujara are altogether different in facts and circumstances and hence reliance placed is ill-founded. Therefore, I am of the view the contention that the G.P.S.C. has no power to decide the modality or method for assessment of marks, may be by scaling, is devoid of any merit, and therefore, deserves to be rejected.
14. Even if it is assumed that there is power with the G.P.S.C. to decide the modalities and methodology for assessment of marks and its finalisation, then also it would be necessary to examine the crucial issue as to what is scaling and whether scaling is accepted as a modern method for the purpose of assessment of marks and the another aspect which would be required to be examined is whether the formula applied by the G.P.S.C. for the purpose of scaling of marks is on rational basis with the full consciousness of mind and after undertaking the studies and whether by application of such formula for scaling absurd results are brought about. In my view before the aforesaid aspects are examined, it is necessary to take note of the scope of judicial power in the matter of conducting of examination or in the matter of assessment of marks. The law is settled on the said point that normally the Court would not be substituting its wisdom in place of wisdom of academicians to decide the method and manner of conducting the examination and also for the method and manner of assessment and awarding of marks unless such action is arbitrary, irrational, unconstitutional or prohibited by law or such application brings about absurd results which has resulted into great injustice. Keeping the aforesaid scope of judicial review the matter will have to be examined.
15. Since on the method of scaling or what can be scaling no other book is made available nor the learned advocates of the petitioners have drawn the attention of this Court with a view to better understand "the scaling" in detail, this Court with a view to advance the cause of justice has found it proper to make reference and to some extent rely upon some of the websites available on internet. In my view, when our country has made law prohibiting cyber crimes and on the basis of modern methods of computer, E-mails, internets, the laws are also amended, in such relevant material available on internet can be used for knowledge purpose and also for resolving disputes sometimes. In www.satac.edu.au, a website available on internet under the head of "Scaling--What, Why and How--2001" the scaling is described as under :
"Scaling is a mathematical process which adjusts the results students achieve in their various SACE stage 2 (year 12) subjects so that the students can compete on a fair basis for entry to University and TAFE courses."
With a view to understand in a better way it has also been provided in the said scaling as to why scaling is necessary which is quoted as under :
"The subject content, the types of skills they measure, the way they are assessed and the range of abilities among the students varies from subject to subject. Because of this, no direct comparison can or should be made between subject achievement scores in one subject with those in another.
Look at the scores below :
Danny Jason Subject Subject Achievement Score Subject Subject Achievement Score Biology 16 Biology 14 Business Maths 16 English 14 We can say that Danny did better in Biology than Jason did. But, this is all we can say. We cannot say for instance that Danny did better in Biology than Jason did in English. We cannot even say that Danny did equally well in both Biology and Business Maths. Even more importantly, we cannot say that Danny's 'total' of 32 for his two subjects is 'better' than Jason's 'total' of 28 for his two."
The material shows various modes including "equal achievement" from scaling in practice has been provided. The important points to be noted about the scaling are mentioned as under :
"Scaling is done on the raw scores which are scores out of 200 rather than on the subject achievement scores which are out of 20--this allows for greater accuracy. It is, therefore, possible for two students to have the same subject achievement score in a subject but different scaled scores. Say, for example, that Kim gets a raw score of 138 in Biology and Lee gets 144 but both receive a subject achievement score of 14. Kim's raw score of 138 might be scaled to 14 but Lee's raw score of 144 might be scaled to 14.5.
Scaling has the greatest impact on middle range scores-very high and very low scores are least affected by scaling.
The amount by which a subject is scaled depends upon group performance, not the performance of an individual.
Scaling does not change the order of students in a subject. If Tanya's raw score of Biology was higher than Sophie's, then her scaled score for Biology will also be higher or atleast equal to Sophie's scaled score."
"When the scaling process has been completed the scaled scores are used to calculate a TAPE Selection Score and a University Aggregate for each eligible student. For University courses, a Territary Entrance Rank is calculated from the University Aggregate for each eligible student."
16. In the material available on website on internet http:/science.ntu.ac.uk/ msor/ccb/scaling.html marking and scaling of course work and tests in different examinations have been provided.
17. In view of the aforesaid material, and other material available for scaling on internet, it appears that the scaling is a technique adopted for assessment of merit of student who has passed examination from different colleges or Boards for entry to degree course in the University. There may be a different syllabus in A school or A Board while comparing with A School or A Board, the standard of assessment by the examiner may also vary. With a view to extract comparative merit of two candidates in different subjects the scaling is considered to be a modern technique. However, as observed earlier, in the material referred to hereinabove, it appears that the merit order remains same within the subject and by scaling the majority sufferers are the middle merit group candidates neither topers nor those who are in the lower grade. In developed countries normally there is no marking system and the system prevalent is on the basis of gradation. The scaling is considered to be well established method for the purpose of entry to a common stream or various better streams having their different origins in education. The ultimate purpose appears to be to assess the comparative merit or performance of candidates in different subjects or in same subject having different origins or different examiners. Even in the judgment of the Division Bench of Rajasthan High Court as well as of this Court in the matter of Kamlesh Haribhai Goradia v. Union of India, reported in 1987 (1) GLR 157 reference is made to the method of scaling for the purpose of assessing comparative merit. Therefore, I am of the view scaling of raw marks is one of the modern methods accepted amongst academicians for assessing the comparative merit of student from different college or University, as the case may be.
18. The aforesaid takes me to examine the reasons behind scaling and the method adopted for scaling by the G.P.S.C. I find from various material which are available on internet there are large number of scaling techniques which may be applied by the Body which is using the scaling method for assessing the comparative merit of candidates. In the website on internet http:/ science.ntu.ac.uk/msor/ccb/scaling.html under the head "Scaling, advice and guidelines for students (September, 2002)" material is provided to the students regarding scaling method adopted by all Universities. One of the methods provided is as under :
Scaled = 50+3 (Raw-50)/5.
It has been provided that this formula brings raw marks of 100% down to a scaled mark of 80%. It has also been provided that mean to be applied which will be a standard mean depends upon the overall assessment of difference and the formula to be adopted for such purpose, which may vary from case to case.
19. So far as the G.P.S.C. is concerned, as per the defence raised in the affidavit-in-reply it has been submitted that they have followed the method recommended in a book of V. Natarajan known as "Scaling Techniques, What, Why and How". Reliance was placed upon the concluding portion which is also reflected in the affidavit-in-reply at Para 5 onwards. The book of Mr. Natarajan is made available to the Court and at the concluding portion it is narrated at page 45 as under :
"Based on the findings of the research studies quoted earlier the following seven areas have been identified which warrants adoption of scaling/equating techniques :
(1) When many examiners are involved in marking the scripts relating to a subject;
(2) When scripts relating to two subjects one set answering in English and the other in a regional language have to be scored;
(3) When marks relating to different subjects are to be added so as to get an aggregate;
(4) When internal audit And external assessment marks are to be added and/ or compared;
(5) When students' performance from different School Boards, Universities are to be compared;
(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 alternate forms of an objective question paper are to be compared."
20. Mr. Patel, learned Counsel appearing for the G.P.S.C. has submitted that so far as the present case is concerned, the G.P.S.C. has taken into consideration the contingencies or the areas narrated at items (1) and (3) above for the purpose of applying method of scaling. After identifying the areas in the very book, the techniques have been further narrated areawise. So far as the first area where many examiners are involved in marking the scripts in a subject is concerned, the discussion begins from page 146 onwards of the said book. Possibly the contention sought to be raised on behalf of the G.P.S.C. is that since there are number of students and number of examiners marking scripts in a subject it was advisable to apply scaling method as recommended by Mr. Natarajan in the said book. Prima facie, the said contention appears to be attractive but upon close scrutiny it appears that same is the case for compulsory subjects too. Number of examiners marking the scripts in compulsory subjects are more in comparison to optional subjects. However, for the reasons which are not disclosed in the affidavit-in-reply the G.P.S.C. has not decided to apply scaling method on the raw marks obtained in the compulsory subjects. If the contention had been so genuine and bonafide, in my view in the compulsory subjects it was more required to apply scaling method in comparison to optional subjects because on the basis of figures supplied during the course of hearing in the preliminary examination since the number of students was 70,115 the number of examiners in any case in compulsory subjects would be much more in comparison to the number of examiners in optional subjects. The original file of the G.P.S.C. containing the noting and other relevant papers was made available to the Court for perusal and statement on page 27/C shows that as against total number of students of 70,115 in compulsory subjects in optional subjects the number of students in majority of cases appearing below 5,000 and it was only in case of Economics the number of students was 7,803, in History 14,714, in Gujarati Literature it was 6,631 and in Commerce it was 7,191. Therefore, out of 37 optional subjects, in 33 optional subjects there were less number of students than 5,000 and as a consequence thereof the number of examiners would be naturally less on account of students less than 5,000. Similar was the case for main examination. The figures which are supplied to the Court goes to show that in compulsory subjects number of students were 7,963 whereas number of students in optional subjects in majority of cases were less than 500. It was only in Economics it was 540, in History it was 1,352, in Geography it was 2,008 and Political Science it was 633. In other words, not only in 4 subjects out of 28 optional subjects the number of students were above 500 and in the compulsory optional 28 subjects number of students was less 500. Mr. Patel has made a statement at Bar that total number of students who appeared at the main examination are 4,086 and figure shown in the statement which is supplied to the Court during the course of hearing was 7,963 is on the basis of candidates who have opted for two optional subjects and each appearance is separately considered, and therefore, if a candidate has appeared in two optional subjects though there may be one candidate but the figure would be two and if he is absent during the examination of any optional subject he will go away from the total figure of 7,963 and that is how the figure of 7,963 is arrived at. The aforesaid figure clearly goes to show there were 209 candidates at the main examination in optional subjects who appeared in either out of two or in one optional subject. Inspect of the same their marks are taken into consideration for the purpose of arriving at the figure of combined mean.
21. The aforesaid figures clearly goes to show that the number of examiners marking scripts in compulsory subject at the preliminary examination as well as the main examination would be much higher and to be more specific in majority of the cases 14 times more in preliminary examination and 15 times more in the main examination. Inspite of the same, the G.P.S.C. has taken decision to apply formula of scaling method only in optional subjects at the preliminary examination as well as at main examination and not in compulsory subject. Had the defence of the G.P.S.C. been genuine for accepting the recommendations of Mr. Natarajan as mentioned in the book the first step in this regard should have been to apply scaling method also in compulsory subject but there is no explanation in this regard as to why the decision is not taken to apply scaling method formula as suggested by Mr. Natarajan in compulsory subjects.
22. It was also alternatively submitted on behalf of G.P.S.C. that the purpose of not applying scaling method in compulsory subjects was because subjects were common and it was only in case of different subjects the comparative merit was to be assessed and therefore the area identified at figure 3 in the book of Natarajan was made applicable. Even close scrutiny of said alternative submission shows that the discussion for such purpose is at page 201 Para 6.2.2 in the said book which shows that if a University is reporting the performance of the students in terms of grades which are in turn based on certain range of marks then it can prescribe the percentage of candidates to get various grades. But even while suggesting the said method the author has recommended as under : "Of course, the scripts have to be randomised before being sent for valuation". There is no material produced by G.P.S.C. before the Court nor even such is the defence in the affidavit-in-reply that for correction by any examiner in any subjects is sent for valuation by way of random, simple or otherwise. Mr. Patel made an attempt to contend that in the very paragraph an alternative mode is suggested, namely, the Linear Standard score may be applied keeping the mean and standard deviations standard to which the marks are to be scaled constant for all the subjects. But it is pertinent to note that the author has used the language in this aspect as under :
"Of course, this is a difficult problem to tackle. For a period of time, the performance of the students after scaling of marks in different subjects may be observed. If the mean and standard deviation marks used as the standard in different subjects do not differ appreciably then those figures may be taken as the standard. Therefore, a continuous study of data is necessary."
23. It appears that the author has suggested the same in a matter where there is continuous assessment of a candidate. He has suggested to accept the figure if the different subjects do not differ appreciably. No material is produced nor such submission is made that the figure of different subjects do not differ appreciably. On the contrary, the contention of G.P.S.C. is that there can be no comparison of raw marks in two optional subjects.
24. Before the question is examined regarding the method applied by the G.P.S.C. for scaling, it is necessary to consider certain aspects which prompted the G.P.S.C. to apply scaling method. As recorded earlier, the statement has been made at Bar that the reasons for applying the scaling method at the preliminary examination is the same as that for main examination. Upon the request of the learned Counsel for the parties original file has been called upon with the nothings thereto from the G.P.S.C. A perusal of the noting dated 26-9-2001 at the time when the G.P.S.C. had to undertake the exercise of scrutiny of preliminary examination results it has been mentioned that if the marking is given on the basis of raw marks the candidates of History subject shall have more representations and the other candidates who opted for the other subjects will not have proper representation, Even Note No. 3 shows that the intention is to give representation to the candidates of all optional subjects equally. The pertinent aspect is that upon the note one of the members of the G.P.S.C. had recorded that if such criteria is adopted it may result into making reservation or extracting of the candidates on the basis of optional subject and whether the same would be in accordance with rules or law or precedent and it is also mentioned that it may be examined as to whether in U.P.S.C. such things are adopted or not. Even Note No. 3 which is there in the file of preliminary examination shows that the same is permitted with a view to give equal representations to the candidates opting for each optional subject. Even the second note, dated 1-10-2001 reiterates the same thing, namely, there is representation of 63.64% to me candidates opted for one or two optional subjects and the rest of the candidates opting for 26 different subjects as well as representation of 38, and therefore, it has been mentioned that for equal representation to the candidates of all the subjects proper justice should be rendered. The aforesaid clearly goes to show that the intention on the part of G.P.S.C. is not to assess the comparative merit of a student for the purpose of applying scaling method, but is with a view to give equal representation or to make equal treatment to the candidates on the basis of optional subjects by not only considering raw marks. The consequence can be that each candidate opting for different optional subjects must be given a representation at the time of deciding the method of marking. In my view such reasoning would basically frustrate the purpose for giving choice to the candidates of having optional subjects. There is no warrant or authority with the G.P.S.C. to make equal representation to the candidates of different subjects. It is the volition on the part of candidates to opt for subjects and the scheme of aforesaid statutory rules itself provide for. Whereas, the candidate having opted for A or B subject, the performance is only to be assessed and it cannot be said that merely because A has opted for X subjects and the number of candidates in X subjects are more they should not be given representation or less representation be given. The net effect is that the G.P.S.C. has made an attempt to make reservation on the basis of optional subjects which is not at all warranted in law. What is called for or what is rather required for G.P.S.C. is to assess the merit and it is open to the G.P.S.C. to assess comparative merit also but the consideration for which the scaling is applied and the noting in the file of G.P.S.C. clearly goes to show that the same is not with an intention to assess the comparative merit but is with an intention which is not warranted under law of making reservation on the basis of optional subject to each candidate. Even the formal statement which appeared on page 23/C shows that for each optional subject a degree of representation from each subject is kept in mind. The consequence would be that there will be a less representation of a candidate opting for X or Y subject if there are more number of candidates and the candidate who opted for an optional subject and the number of candidates are less in that optional subjects will get higher opportunity. In my view, this was not at all warranted on the part of G.P.S.C. to make reservation on the basis of optional subject or to apply scaling method with an intention to give representation to the candidates opting for different optional subjects. In any event, no such criteria or stipulation was provided at the time when the advertisement was issued nor there is any warrant for applying such reservation on the basis of optional subjects even as per the statutory rules framed for the purpose of conducting examination. On the contrary, the scheme of the rules is to see that candidates are equated equally irrespective of their choosing optional subjects. Under the circumstances, I find that the reasons prompted the G.P.S.C. to apply scaling method is in reality not for assessing the comparative merit of the candidate in different optional subjects but is with an intention to give representation on the basis of optional subject equally in such a manner that where number of candidates is more such candidates will get lesser representation and where number of candidates is less such candidates will get higher representation, both in comparison to total number of candidates appearing in the preliminary examination.
25. Since it has been submitted that the reasons for applying scaling method for preliminary examination and the main examination are the same, the consequence is that the application of scaling method or rather purpose for applying scaling method at the preliminary examination as well as at the main examination is ultra vires the power of G.P.S.C. In the affidavit-in-reply there is no tenor or whisper regarding said aspects, but the G.P.S.C., which is a constitutional body in my view cannot go beyond the notings or cannot disclose the stand contrary to their own original record and as observed earlier the original record more particularly the file of preliminary examination and the noting made therein clearly goes to show that it is with an intention to make reservation on the basis of optional subjects which in my view has frustrated the laudable public purpose of applying the scaling method for assessing the comparative merit in different same or optional subjects.
26. In order to understand the scaling method and its application while giving final marking in the examination some observations and the material is referred to in the earlier part of this judgment and as observed earlier the reliance is placed on the material available on internet because except the book of Natarajan no other material of any expert is produced by either side. Such material referred hereinabove shows that it can also be used as the material by experts known worldwide website. Basically the scaling is with a view to equalise the marks by eliminating the differences. Such equalisation is required because of different method of assessment by different examiners and also because of different nature and complexity of a subject and also the different method of question papers etc. There cannot be any wholesome exercise of putting all marks in a common pool and to arrive at mean which will be treated as a standard mean and the deviation therefrom shall be excluded and the marks will be scaled. The first and foremost requirement would be to undertake the exercise of difference of marking system by each examiner. After such difference is recorded and taken note of a formula as provided by the expert shall be applied for arriving at difference between the method of assessment by each examiner or rather a particular examiner. A group of papers assessed by an examiner are required to be taken as a sample and thereafter the assessment by various examiners is compared and then the difference is taken note of. Such difference shall vary on facts of each examiner but then only the standard difference can be arrived and thereafter the said difference would be made applicable on the basis. There is absolutely no material worth the name is produced on record by the G.P.S.C. nor it is even the case of the G.P.S.C. that they had any material to show that there was difference in the assessment between the examiners or difference in question papers, complexities among optional subjects, I am of the view unless and until the difference between the method of assessment between the examiners is found out and thereafter the standard mean is arrived the formula cannot be applied at all. Even in the judgment of Rajasthan High Court upon which the reliance is placed by G.P.S.C. on the basis of assessment made and the difference between the examiners, M was taken as 95.59 being the average marks obtained by the candidates in general knowledge and general science papers. Therefore when the Rajasthan P.S.C. applied the formula at the preliminary examination the basis was the average marks obtained by the candidate in general knowledge and general science and the same was taken as 95.59. There is no whisper on the part of G.P.S.C. to show the value of M arrived at by it taking into consideration the marks obtained by the candidates in general or compulsory subjects at the time of preliminary examination or at the time of main examination, as the case may be. The stand of the G.P.S.C. is that they have applied the same method as it was applied by Rajasthan P.S.C. and also even applied by the U.P.S.C. is factually not correct. As observed earlier the method applied by Rajasthan P.S.C. was on the basis of mean given value of 95.59 which was on the basis of performance in general and compulsory subjects by the candidates which is not at all considered by the G.P.S.C. while applying the formula for scaling. Even the original file of G.P.S.C. on "Seminar (Orientation Programme) on the issue relating to Principles of Moderation and Scaling" shows that so far as the U.P.S.C. is concerned it has been recorded at Column VII that the method applied by U.P.S.C. for inter-subject moderation is altogether different and that system of moderation is applied for comparing the inter se merit and thereafter if there is variation in the marking of optional subjects then only the suitable scaling method is applied. Even the noting dated 9-9-2001 of the aforesaid file of the G.P.S.C. shows that it was initially suggested to apply moderation on all optional subjects by taking sample of about 25%. However, since it was likely to take more time the same is given go-by. As observed earlier, unless the moderation takes place, it is practically impossible to find out the difference in the method and manner of assessment of marks between two examiners but nothing of the aforesaid file shows that since it was to result into examination of about 1,000 answer books and since it was likely to take more time the decision is taken by the G.P.S.C. not to adopt the method applied by the U.P.S.C. and to proceed with same scaling method as it was there at the time of preliminary examination. It further appears from the said original file that thereafter in 10 subjects to some extent the moderation had taken place and regarding the same the reference is there in the note dated 16-11-2002 and not only that but thereafter as per note dated 3-12-2002 it was also decided for remoderation. Still, however, it appears that the stand of the G.P.S.C. in the present case is to insist for making system on the basis of scaling method without fulfilling the conditions before such method is applied. Therefore, the G.P.S.C. is not right in contending that the even in the public service examination conducted by the U.P.S.C. the method and formula applied for moderation and scaling is the same.
27. As observed earlier, even while taking decision of applying scaling method it has not at all undertaken the basic requirement of finding out the difference between examiners and then to apply scaling method on the basis of difference which is known as valuation or value. It appears that by mechanically applying the formula in part, the scaling method is applied. The formula is applied on the basis of the performance of a candidate in various optional subjects would be the same and the method of marking system by different examiners in an optional subject is also the same. This non-application of mind on the part of G.P.S.C. would certainly bring about absurd results, Mr. Sinha appearing for some of the petitioners has given a hypothetical statement to say that how this formula applied by the G.P.S.C. has brought about absurd results. The same is as under :
Subject Student Roll No. (XI) Raw Marks Value of M X A 1 90 63 90 0 @ B 2 85 63 85 0 @ C 3 70 63 70 0 @ D 4 45 63 45 0 @ E 5 25 63 25 0 @ The consequence is that a student scores 90 raw marks will get 63 scaled marks. A student scores even 25 marks in a different optional subject will also get 63 scaled marks. Had it been the case of G.P.S.C. that because of difference in the method of assessment by the examiner or the difference in the method of question paper it was necessary to equalise the marks by applying scaling method the matter would have been different. In any case, even before applying the formula the difference must be examined and must be taken note of. On the basis of said difference, a standard mean shall be arrived at and then only the formula can be applied. Even in the judgment of the Division Bench of the Rajasthan High Court in the matter of Mahesh Kumar Khandelwala (supra) upon which the reliance is placed upon internal page 50 the same is taken note of and the raw marks are scaled examinerwise and then they are equated, whereas in the present case the marks are not at all scaled by eliminating the difference of marking system by the examiner nor they are scaled by eliminating the difference in the complexity of difference optional subjects and the method of marking therein. The aforesaid in my view goes to show that a medicine or a system may be modern, but its application thereof is absolutely without proper application of mind and it is a case of mechanical exercise of applying arithmatical formula that too in part without there being any proper material for the same and without fulfilling the condition precedent for such purpose of finding out the difference by taking note of assessment by different set of examiners. It was expected for the G.P.S.C. to consult the expert for the said subject and then to have the moderation and to find out the difference and with a view to eliminate the different scaling method proper formula could have been applied. Such is not the case here and therefore I am of the view that the scaling method which is applied by the G.P.S.C. at the preliminary and also at main examination is with the purpose which is not warranted in law and is without there being proper material and is also without proper application of mind.
28. Much reliance is placed upon the judgment of the Division Bench of this Court in the matter of Kamlesh Haribhai Goradia v. Union of India, reported in 1987 (1) GLR 157 and the Division Bench of the Rajasthan High Court in the matter of Mahesh Kumar Khandelwala (supra). In the case of Kamlesh Haribhai Goradia (supra) a view was taken by the Division Bench of this Court that the process of moderation is necessary to find out the merit of candidates inter se and the marks cannot be awarded till such uniformity achieved in the examination. The view taken by the Division Bench is that the system of moderation and scaling can be applied by a Public Service Commission at the time while conducting the examination and while giving final marking. Therefore, the judgment of the Division Bench of this Court in my view is of no help to the G.P.S.C. for supporting the present scaling method applied by it and it can support only to the extent that the system of moderation and scaling method can be applied. The Division Bench has never approved or had any occasion to consider the formula of scaling as applied by the G.P.S.C. in the present case.
29. In case of Mahesh Kumar Khandelwala (supra) as observed and discussed above, the pertinent aspect is that the affidavit-in-reply was filed by Mr. M.L. Sharma for which reference was in Para 46 onwards in the judgment of the Division Bench of the Rajasthan High Court where the figure XI is arrived at for moderated marks. Even on internal page 49 "M" is referred for mean mark of an examiner. It is taken note in the judgment of the Rajasthan High Court that "for scaling the marks each examiner's marks are considered separately." Internal page 50 shows that the Division Bench of the Rajasthan High Court has also considered the conversion equations of different examiners to convert raw marks to scaled marks. But, the pertinent aspect is that the conversion is considered examinerwise. At Para 47 of the judgment the Division Bench of Rajasthan High Court has recorded as under :
"We have no reason to doubt the veracity of the sworn statements of S/ Shri Y. Singh and M.L. Sharma in this regard."
At Para 48 the Division Bench has further recorded that "no attempt was made by the petitioners to file any counter-affidavit of any expert in the subject to demonstrate that the application of the formula used suffered from any material flaws and aberrations."
Further at Para 49 of the aforesaid judgment of Rajasthan High Court shows that the challenge was made to the M at 95.59 and while negativing said challenge the Division Bench has extracted the assertions made in the additional affidavit-in-reply of Mr. Sharma that "the value of M was deliberately taken by the Commission as 95.59 (average marks obtained by the candidates in General Knowledge and General Science paper which was common to all)". Therefore, it was true that in the case before the Division Bench of Rajasthan that the value of M was arrived at on the basis of average marks obtained by the candidates in General Knowledge and General Science subjects which is common to all whereas in the present case as observed earlier for finding out value of M no material whatsover of any candidate or examiner in compulsory subject is taken note of . Therefore, I find that the judgment of the Division Bench of the Rajasthan High Court would be of no help to the G.P.S.C. for maintaining the method and manner of applying the formula for scaling.
30. In view of the aforesaid discussion, I find that even if it is accepted that scaling is one of the modern methods of assessing the comparative merit and even if it is accepted that there is power with the G.P.S.C. to take decision of applying the modern method for assessing the comparative merit, the facts of the present case show that the formula applied by the G.P.S.C. for scaling is for different purpose which is not warranted in law and even the formula applied is also in part and that too is without proper application of mind and without there being requisite material of difference in the marking system by the examiner and difference of complexity of subjects.
In view of the aforesaid discussion, I find that the formula of scaling applied by the G.P.S.C. upon the raw marking deserves to be quashed and set aside and hereby quashed and set aside.
31. It is well settled that the Court would normally extend the benefit of relief to only those persons who have approached before this Court unless it results into causing injustice to other similarly situated persons. Since all these matters are being considered at a stage where the preliminary examination is over a long back and the main examination is over and on the basis of performance at the main examination the interviews are to be held by the G.P.S.C., those petitioners who appeared at the preliminary examination and challenged the system/method of applying the scaling at the preliminary examination have preferred these petitions were admitted, the Court had passed the interim order of allowing the concerned petitioners to appear in the main examination. Those petitioners who did not challenge the result of preliminary examination before this Court, in my view, would not be entitled to any relief since they accepted the result. So far as the petitioners who challenged the result of preliminary exam and those who were permitted to appear at the main examination would only be entitled to the benefit of final orders passed these petitions.
32. Further if on the basis of the present challenge to preliminary examination, the relief is granted to all other candidates who suffered but did not prefer petitions then also since they have not appeared at the main examination, even otherwise also, no useful purpose would be served. If declaration of result of preliminary examination is set aside in toto the consequences would be to set at naught the main examination even though such other candidates had accepted the marks given and method applied for scaling at the preliminary examination. If the main examination which is already held is cancelled, in my view it may not only result into serious irreversible situation but would also result into huge expenses for conducting the main examination again, which would require more public time and money etc. Therefore, I find that since the matters are being finally heard at a stage when the concerned petitioners were permitted to appear in main examination and the main examination of about more than 7,000 candidates is already held, judicial discretion demands that relief be extended only to the concerned candidates who preferred petitions challenging the result of preliminary examination and such relief should be considered by taking care that main examination may not be required to be held again.
33. Whereas, such is not the case so far as the main examination is concerned the result of the main examination is yet not finally given effect and it has come on record that the process of interview has not yet begun and are postponed by G.P.S.C. itself, Therefore, I am of the view that so far as result of main examination is concerned, it would stand on a different footing than that of the preliminary examination. Further, as the second stage after declaration of result of the main examination has not started, namely, the interview, the matter is at the stage after the declaration of result of main examination. If the result of main examination is ordered to be cancelled on the basis of such scaling method applied by G.P.S.C. in respect of concerned petitioners only then in that case the G.P.S.C. may proceed to act upon the result of other candidates who have not approached the Court and if the interim relief to that extent is considered it would result into creating irreversible situation. Moreover, on the basis of performance in main examination and at the interview the select list is to be prepared, Therefore, considering the facts and circumstances of the case, and the stage at which matters are being decided finally, I find that the relief should not be restricted to present petitioners but it should be in general with a view to rule out possibility of causing injustice to any candidate who has appeared at the main examination but has not approached this Court because the rights, if any, would be interconnected, if performance at interview is subsequently considered.
34. In view of the aforesaid discussion, I find that following directions would meet with the ends of justice :
(A) The petitions of the petitioners who have challenged the result of preliminary examination on the ground of application of scaling formula by the G.P.S.C. shall stand allowed only to the extent that they shall be treated as eligible by G.P.S.C. for appearing at the main examination.
(B) So far as the petitions of the petitioners who have prayed for declaration of result of main examination as illegal and void and who have challenged the application of formula of scaling at the main examination are concerned they shall stand allowed to the extent that the method and manner of applying the scaling method by G.P.S.C. at the main examination in optional subjects is quashed and set aside and as a consequence thereof the declaration of result by the G.P.S.C. of main examination shall also stand cancelled.
(C) It is further clarified and ordered that the G.P.S.C.. shall not be required to conduct the main examination again but shall consider the matter afresh keeping in view the discussion and the observations of this Court in this judgment and it will be at liberty to declare the result of the main examination on the basis of raw marks or to apply the method of moderation and scaling after consulting the experts and shall declare the result thereafter in either case. In any event, such exercise of declaration of result shall be completed by the G.P.S.C. as early as possible, and in any case, before the expiry of a period of four months from the date of receipt of writ of this Court.
(D) The G.P.S.C. shall also declare the result of each candidate with marks which may finally be awarded by the G.P.S.C. at the main examination and such declaration shall be made in any case prior to holding of interviews for the post in question.
35. All the petitions are allowed to the aforesaid extent and Rule in each petition is made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
36. In view of the judgment in main petitions, there shall be no order in C.A.s and all the C.A.s stand disposed of accordingly.