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12. Sub-Rule (1) of Rule 20 of the Judicial Service Rules requires the Commission to prepare the result of the written examination and thereafter, invite such number of candidates, who in the opinion of the commission have secured minimum marks as may be fixed. Sub-Rule (2) provides for participation of a sitting Judge in the interview of candidates. Sub-rule (3) provides that the Commission shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregates of marks finally awarded to each candidate in the written examination and the interview. The proviso thereto provides that if two or more candidates obtain equal marks in the aggregate, the name of the candidate who is elder in age shall be placed higher and where two or more candidates of equal age obtain equal marks in the aggregate, the name of the candidate who has obtained higher marks in the written examination shall be placed higher. Rule 21 provides that the Governor shall on receipt of the list of candidates submitted by the Commission under Rule 20(3) make appointment on the posts of Civil Judge (Junior Division) in the order in which their names are given in the list provided. Thus the Judicial Service Rules constitute a complete code in itself in regard to recruitment to Judicial Service. It is also evident that the marks finally awarded to each candidate in the written examination and interview are crucial both for appointment as also for purposes of inter se seniority.

II. Equalization of marks of persons who secured very high marks.

The scaling has equalized the different high end marks of candidates, where the mean marks is low. To give a hypothetical example if the mean marks is 70 and the standard deviation is 15, all candidates securing raw marks 145 to 200 will be assigned the equal scaled marks of 200. If the mean marks are 60 and the standard deviation is 15, all candidates securing 135 to 200 will be awarded the scaled marks of 200. Similarly, if the mean marks are 80 and the standard deviation is 20, all candidates securing raw marks between 180 to 200 will be awarded equal scaled marks of 200. In addition to the above hypothetical examples, we may give a concrete example. In regard to Examiner No. 14 in Language Paper, Table-II shows that the highest marks secured is 145. In regard to that examiner, the mean marks is 54.77 and standard deviation is 17.02. By applying the scaling formula, the marks of 145 secured by that candidate becomes 206 which is taken as 200 as per the formula. All candidates who were awarded raw marks of 140 to 145 by Examiner No. 14 in Language paper will be assigned the equal scaled marks of 200. This leads to unequals being treated as equals. In case of candidates securing marks in higher ranges on scaling, there is likelihood of their marks being equalised with those who secured lesser marks thereby losing the benefit of their higher marks and inter se merit.

III. Equalization of marks of persons who secured low marks.

The scaling has also equalized the different low end marks of candidates, where the mean marks is high. To give a hypothetical example, if the mean marks is 95 and the standard deviation is 11, then all candidates securing 40 and below will be awarded only '0'. To give a concrete example, in regard to Examiner No. 7 in Law Paper-II, one candidate has secured 32. In respect of that examiner, the mean marks is 94.4 and standard deviation is 11.48. By applying the scaling formula, the scaled marks of the said candidate who secured 32 becomes '0'. Not only that. Scaled marks of all candidates who were given raw marks of 37 and less by that examiner, becomes '0'. This leads to unequals being treated as equals and candidates who secured marks in the lower ranges (from that examiner) losing out to candidates who performed much worse but were in the pool of other examiners.

34. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart-burn and dissatisfaction. When the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation.