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7. The respondents, in their reply, have contended that the recommendation of the Commission is based on aggregate marks finally awarded to each candidate as per the scheme of examination provided under Rule 15 of the Rules of 1999. Scaling system has been approved by the Apex court in Mahesh Kumar Khandelwal & 16 Ors. Vs. State of Rajasthan & Ors., 1994 (1) RLR 533; Rajasthan Public Service Commission Vs. Ramesh Chandra Pilwal, RLW 1997(2) Raj.1348 and in the matter of Manish Sinsinwar & Ors. Vs. Rajasthan Public Service Commission & Anr. (D.B. Civil Writ Petition (PIL) No.368/2004 decided on 14.6.2004). In scaling system, many examiners are involved in marking the answering scripts relating to a subject; in different languages the answers are given i.e. English and Hindi. Seven areas have been specified where scaling can be applied. Decision has been taken in consonance with those principles. After completion of main examination of 37 heterogeneous subjects having first and second papers, the evaluation was done with the help of several examiners as per the number of answer scripts, therefore, examiner code had been separately awarded. The subject mean and standard deviation are having much deviation, hence, to bring common mean and common standard deviation adoption of scaling system was necessary as held in the meeting dated 2.2.2009 and thereafter meeting of Experts was held on 13.3.2009 for application of the scaling technique.

19. In Sanjay Singh (supra), the Apex Court also took note of the fact that in judicial service examination, the candidates were required to take the examination in respect of all the five compulsory subjects and the candidates did not have any option in regard to the subjects. Consequently, the Apex Court laid down that in such a situation, moderation appeared to be an ideal solution. The Apex Court at the same time has laid down that there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogeneous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. In such a situation, candidates who have opted for easier subjects may steal an advantage over those who opted for difficult subjects. The paper-setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. Their Lordships have given examples vividly of variations so caused and the Apex Court ultimately observed that in view of the peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of the candidates who have opted for different subjects can be ascertained. The moderation will solve only the problem of examiner variability. Moderation is no answer where the problem is to find inter se merit across several subjects. Thus scaling is not arbitrary in such exigencies. The Apex Court has laid down in Sanjay Singh (supra) thus:-

24.In the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogeneous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that marks of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. This may happen when for example, in a Civil Service examination, where Physics and Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriate to a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer scripts is in respect of a single subject. Moderation is no answer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalized equipercentile method are some of the recognized methods for scaling.

25. The Apex Court, in K.Channegowda & Ors. Vs. Karnataka Public Service Commission & Ors., (2005) 12 SCC 688, has laid down that scaling can be applied at certain level where variation in marks is plus or minus and plus or minus 20 or more as all the candidates did not get the benefit of moderation. The Apex Court has laid down thus:-

43. Another aspect of the matter is with regard to applying the scaling method as per the direction of the High Court. The scaling method has been described earlier in this judgment. The selected candidates have a grievance against the application of this method. It was submitted that it may not be proper to apply the scaling method only in respect of subjects where the answer scripts have to be moderated by Head Examiner/Chief Examiner and not to other subjects where the High Court has upheld the moderation/ random checking by the Head Examiner/Chief Examiner. We have given the submission our serious thought. The scaling method is applied only with a view to maintain a uniform standard in the marking of answer scripts. As is well known some answer scripts are randomly taken up for evaluation by Head Examiners/Chief Examiners. It may be that some examiner may be very liberal and generous in awarding marks whereas some other examiner may award much less marks for the same quality of answer. Upon moderation, no doubt the candidate whose answer paper is moderated gets benefit of moderation, but such benefit is not extended to other candidates whose answer scripts may have been examined by the same examiner, but were not randomly selected for re-evaluation by the Head Examiner/Chief Examiner. It is true that there is bound to be some difference in the marks awarded by different examiners in the same subject. But the need for applying scaling method arises only in cases where the variation in marks awarded exceeds a certain level. It is, therefore, not necessary that the scaling method should be applied in all cases. The scaling method will be applied only where the variation in marks is plus or minus a certain level or percentage. The High Court in the instant case has directed that scaling method shall be applied only when it is found that average variation is plus or minus 20 or more. Wherever the average variation is less than plus or minus 20, general review of the marks awarded need not be done. We were told that the scaling method is now being applied in many competitive examinations held in this country and the purpose of applying the scaling method is to bring about a certain uniformity of standard in the matter of award of marks by the examiners. No exception can be taken to the scaling method in principle.