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11. Mr. (Dr.) Ashok Kumar Singh, the learned counsel for the Commission, submits that the appellants are beneficiaries of the "scaling 4 LPA 198 of 2019 and analogo us cases method" who, however, when were not selected turned around and challenged the adoption of "scaling method" by the Commission. The learned counsel for the Commission has vehemently argued that the appellants are estopped from raising a plea based on applicability of "scaling method" for the Mains Examination.

13. In the PCS Examination, 2004 and the Backlog Examination, 2004 the candidates had to take part in the main written examinations which consisted of four compulsory subjects and two optional subjects. The compulsory subjects were common to all candidates and the two optional subjects were to be chosen from the available 33 subjects as mentioned in the advertisements.

7 LPA 198 of 2019 and analogo us cases As per the judgment of this Court in Sanjay Singh case, the Commission could have followed the scaling method only for the optional subjects and not for the compulsory subjects. However, it is clear from the submissions made on behalf of the appellant in the High Court that scaling method was followed even for compulsory subjects. We approve the findings of the High Court that the evaluation of the PCS and Backlog Recruitment Examinations, 2004 was contrary to the judgment of this Court in Sanjay Singh case.

43.The petitioners have also relied upon the judgement passed by Hon'ble Rajasthan High Court in writ petition no. 1211/2014 (Banwari Lal versus State of Rajasthan and another) to submit that the instant case is fully covered by the said judgement. This court finds that the said judgement passed by Hon'ble Rajasthan High Court is clearly distinguishable on facts as in the said case the scaling method was adopted not only for the optional subjects but also for the compulsory subjects and the formula adopted for scaling was itself found to be faulty as it had the effect of excluding meritorious candidates as demonstrated by the writ petitioners of the said case. In the instant case there is no such corresponding 8 LPA 198 of 2019 and analogo us cases facts. Scaling method has been adopted only for optional subjects, the formula has been found to be scientifically/ statistically sound by the experts as indicated above and the petitioners have not been able to demonstrate that the meritorious candidate have been excluded on account of applying the method of scaling in the optional subjects.

17. Mr.(Dr.) Ashok Kumar Singh, the learned counsel for the Commission, has pointed out that the "scaling method" was applied only in respect of optional subjects and the appellants were benefited on account of scaling of marks as their raw marks were substantially enhanced.

18. On applicability of "scaling method" which is commonly called "examiner subjectivity" or "examiner variability", our attention has been drawn to paragraph No.16 to 28 of the supplementary counter affidavit filed by the Commission in WP(C) No. 3962 of 2013 which read as under: