Heard Sri Radha Kant Ojha Senior Advocate assisted by Sri Shivendu Ojha, Sri Ashok Khare Senior Advocate assisted by Sri Siddharth Khare, Sri Shashi Nandan Senior Advocate assisted by Sri Udayan Nandan, Sri ...
No Acts & Articles mentioned in this case
AFR
Court No. - 36
Case :- WRIT - A No. - 23733 of 2018
Petitioner :- Atul Kumar Dwivedi And 108 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Deepak Kumar Jaiswal, Ajay Singh
Yadav, Deepak Kumar Jaiswal, Prashant Mishra, Tarun
Agrawal, Venu Gopal
Counsel for Respondent :- C.S.C., Hritudhwaj Pratap Sahi,
M.M.Sahai, Samarath Singh, Sankalp Narain
ALONGWITH
WRIA-13010/2018 WRIA-14296/2018WRIA-15764/2018
WRIA-16160/2018 WRIA-18032/2018 WRIA-19426/2018
WRIA-20684/2018 WRIA-21610/2018WRIA-25140/2018
WRIA-26059/2018 WRIA-26793/2018WRIA-395/2019
WRIA-862/2019 WRIA-1318/2019WRIA-1498/2019
WRIA-3011/2019 WRIA-3877/2019WRIA-3906/2019
WRIA-4001/2019 WRIA-4048/2019WRIA-4051/2019
WRIA-4144/2019 WRIA-4255/2019WRIA-4270/2019
WRIA-4325/2019 WRIA-4328/2019WRIA-4330/2019
WRIA-4333/2019 WRIA-4402/2019WRIA-4413/2019
WRIA-4451/2019 WRIA-4468/2019WRIA-4498/2019
WRIA-4502/2019 WRIA-4517/2019WRIA-4781/2019
WRIA-4783/2019 WRIA-4785/2019WRIA-4787/2019
WRIA-4801/2019 WRIA-4834/2019WRIA-4845/2019
WRIA-4850/2019 WRIA-4851/2019WRIA-4863/2019
WRIA-4868/2019 WRIA-4892/2019WRIA-4910/2019
WRIA-4912/2019 WRIA-4938/2019WRIA-4981/2019
WRIA-4988/2019 WRIA-5041/2019WRIA-5158/2019
WRIA-5243/2019 WRIA-5354/2019WRIA-5427/2019
WRIA-5483/2019 WRIA-5493/2019WRIA-5533/2019
WRIA-5538/2019 WRIA-5564/2019WRIA-5567/2019
WRIA-5598/2019 WRIA-5608/2019WRIA-5624/2019
WRIA-5685/2019 WRIA-5730/2019 WRIA-5753/2019
WRIA-5830/2019 WRIA-6036/2019 WRIA-6076/2019
WRIA-6236/2019 WRIA-6246/2019 WRIA-6250/2019
WRIA-6329/2019 WRIA-6500/2019 WRIA-7000/2019
WRIA-7092/2019 WRIA-7157/2019WRIA-7215/2019
WRIA-7366/2019 WRIA-7458/2019WRIA-7615/2019
WRIA-7740/2019 WRIA-7790/2019WRIA-7815/2019
WRIA-7981/2019 WRIA-7988/2019WRIA-8149/2019
WRIA-8152/2019 WRIA-8172/2019 WRIA-8184/2019
WRIA-8188/2019 WRIA-8293/2019 WRIA-8295/2019
WRIA-8297/2019 WRIA-8311/2019 WRIA-8318/2019
WRIA-8321/2019 WRIA-8322/2019 WRIA-8323/2019
WRIA-8326/2019 WRIA-8328/2019 WRIA-8330/2019
WRIA-8425/2019 WRIA-8574/2019 WRIA-8877/2019
WRIA-8892/2019 WRIA-9036/2019 WRIA-9926/2019
WRIA-10781/2019 WRIA-11431/2019 WRIA-11632/2019
WRIA-12191/2019 WRIA-12194/2019 WRIA-12302/2019
WRIA-12451/2019 WRIA-12514/2019 WRIA-12641/2019
WRIA-13247/2019 WRIA-13259/2019
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Suneet Kumar,J.
1.Heard Sri Radha Kant Ojha Senior Advocate assisted by
Sri Shivendu Ojha, Sri Ashok Khare Senior Advocate assisted by
Sri Siddharth Khare, Sri Shashi Nandan Senior Advocate assisted
by Sri Udayan Nandan, Sri Tarun Agrawal, Sri Satyendra
Tripathi and Ms. Shreya Gupta, learned counsels for the
petitioners at length. All other counsels appearing for the
petitioners in the writ petitions tagged with this bunch have
adopted the arguments extended by the above noted counsels.
2.Sri Manish Goyal learned Additional Advocate General
assisted by Sri Vikram Bahadur Yadav learned Standing Counsel
has been heard on behalf of the State-respondents and the U.P.
Police Recruitment and Promotion Board
1
. Sri Sankalp Narain
learned Advocate has extended his arguments on behalf of the
selected candidates, private-respondent Nos.4 to 23, in the
leading writ petition.
1Selection Board
2 of 65
3.These writ petitions have been filed by the candidates
who had obtained 50% marks in each section/subject in the
online written examination held in multiple shifts between
12.12.2017 and 23.12.2017. The facts relevant to appreciate the
controversy at hands are that a notification dated 17.06.2016
was issued by the third respondent namely the Additional
Secretary (Recruitment), Uttar Pradesh Police Recruitment &
Promotion Board, Lucknow (Selection Board) advertising 2707
posts of Sub Inspector (Civil Police), Platoon Commander P.A.C.
and Fire Brigade Second Officer in the pay scale/pay
band/9300-34800 and grade pay Rs. 4200. The recruitment was
to be made on the basis of online written examination of one
question paper (total 400 marks) comprising of four
sections/subjects of 100 marks each, named as:-
Sl No. Subjects Maximum marks
1. General Hindi 100 marks
2. Basic Law/Constitution/General
Knowledge
100 marks
3. Numerical and Mental Ability
Test
100 marks
4. Mental Aptitude Test/I.Q.
Test/Reasoning.
100 marks
4.Before conducting the written examination, in order to
provide method and modalities of the selection process, a
notification dated 28.06.2017 was issued by the Selection Board
in continuation of the advertisement notification dated
17.06.2016. The aforesaid notification provides that online
applications were invited for filling up total 2707 vacancies of
Sub Inspector, Civil Police (Male and Female), Platoon
Commander and Fire Service Second Officer whereunder total
3 of 65
6,30,926 applications had been received. Looking at the huge
number of applicants, the Board had resolved to hold written
examination in multiple shifts which would require preparation
of different sets of examination papers. As there was possibility
of variation in the difficulty level of the questions papers, it
had decided that for preparation of merit list of successful
candidates, the marks obtained by the candidate papers/subjects
wise would be normalized by using “Standardized Equi-
percentile Method” in the same line as adopted in M.A.H,
M.B.A/M.M.S, C.E.T 2015 examination. The notification further
states that the questions papers would be of 160 multiple
choice questions carrying total 400 marks. Each section/subject
comprised of 40 questions carrying maximum 100 marks; 2.50
marks allocated for each right answer. There was no negative
marking for the wrong answer. It was further notified that the
candidates who failed to obtain 50% marks in each subject
would not be eligible for recruitment.
5.The recruitment to the posts in question is governed by
the U.P. Sub Inspector and Inspector (Civil Police) Service (First
Amendment) Rules' 2015
2
, whereunder Rule 15 provides for
detail procedure for direct recruitment to the post of Sub
Inspector. The said rules have been framed in exercise of
powers under clause (c) of sub-section (2) of Section 46 read
with sub-section (3) of the said section and Section 2 of the
Police Act' 1861 by the Governor to regulate the selection,
promotion, training, appointment and other service conditions
such as seniority and confirmation etc. of Sub Inspectors and
Inspectors of Civil Police in U.P. Police Force notified on
2Recruitment Rules
4 of 65
August 19, 2015 and had been amended with effect from the
3
rd
December, 2015, the date of publication of the First
amendment Rules' 2015.
6.On the factual aspects of the selection, it is contended by
the learned Advocates for the petitioners that total approx
11000 and odd candidates were called to participate in the
“Physical Standard Test” and “Physical Efficiency Test” as per
Rule 15 (c) and 15 (d) of the Recruitment Rues. They include
all those candidates who had obtained 50% or more marks
(Raw marks or actual marks) in the written examination and
also those who had obtained 50% or more marks as per
“normalized score”, (the marks calculated by the Selection
Board by using “Standardized Equi-percentile Method”). All the
petitioners herein stated to have cleared both the subsequent
stages of recruitment of “Physical Standard Test” as per clause
(c) of Rule' 15 and Physical Efficiency Test {(as per Rule 15
(d)} and had obtained 50% or more than the actual/raw marks
in each subject of the question paper. It was further stated that
they had been excluded from the final select list i.e. inter-se
merit list of the candidates selected for appointment prepared
under Rule 15 (e) of the Recruitment Rules, on the ground that
they obtained less than 50% “normalized score” derived by
using Standardized Equi-percentile Method.
7.As per the “Statistics” provided by both the counsels for
the petitioners and the selection Board, out of total 11,741
candidates notified to participate in the subsequent stages of
selection i.e. “scrutiny of document and Physical Standard
Test” and “Physical Efficiency Test”, 5461 candidates were
5 of 65
those who had obtained 50% of actual/raw marks in the written
examination and 5713 candidates were those who obtained 50%
“normalized score”. Total 8877 candidates had qualified all the
stages, which included 4334 candidates who obtained 50% or
more actual/raw marks and 4543 candidates who obtained 50%
or more normalized score. Out of 4543 candidates who had
obtained 50% normalized score, 3457 candidates had been
selected and sent for training. We are also informed that all
selected candidates are under going training and as on date no-
one has been appointed.
8.The notification declaring final result was displayed on
28.02.2019 on the website of the Board which comprised of 8
lists, detail of which is enumerated as under:-
“(i)List 1- List of 2181 selected candidates for the post
of Sub Inspector (Civil Police), Platoon Commander PAC
and Fireman Second Officer.
(ii)List 2- A joint merit list of 2181 selected candidates
for Sub Inspector (Police), Platoon Commander PAC and
Fireman Second Officer.
(iii)List 3- A joint merit list of 2181 selected candidates
for Sub Inspector (Civil Police), Platoon Commander PAC
and Fireman - Second Officer categories.
(iv)List 4- A list of 1943 candidates selected for Sub
Inspector (Civil Police).
(v)List 5 - 162 candidate selected for Platoon
Commander PAC.
(vi) List 6- List of 76 officers selected for Fireman second
officer.
(vii)List 7- List of non selected candidates.
(viii)List 8 - List of candidates declared unsuccessful in
the written examination.”
6 of 65
9.The petitioners herein have been included in the List 8
i.e. the list of candidates who had been declared unsuccessful
in the written examination. At that stage, writ petitions were
filed by the candidates who had been placed in the List 8
seeking for quashing of the said list as also the notification
dated 28.06.2017 issued by the Selection Board notifying that
the Selection Board shall adopt normalization procedure in
preparation of the merit list. In some of the writ petitions in
this bunch, the entire final select list dated 28.02.2019 is also
subject matter of challenge.
10. The leading Writ Petition No.23733 of 2018 was,
however, filed in the month of October 2018 before declaration
of the final result wherein the grievances of the petitioners
initially was that the Selection Board had wrongly applied the
normalization process i.e. Standardized Equi-percentile Method
by issuing call letters to all those candidates who had not
obtained 50% or more (Raw/Actual score) in each four subjects
and scored 50% (normalized marks derived by applying
Standardized Equi-percentile Method) to appear in the “Physical
Standard/Efficiency Test” held in the month of June and July
2018.
11.It appears that some of the petitioners before the Lucknow
Bench had approached the Supreme Court in (Manish Kumar
Yadav Vs. State of U.P. & others)
3
challenging the order of the
Division Bench dated 27.05.2019 leaving it open for the
Selection Board to proceed with the appointment as per the
final select list dated 28.02.2019, subject to the condition that
the selected candidates shall not claim any lien or right over
3.Special Leave to Appeal (C) No.13551 of 2019
7 of 65
the appointment and their appointment shall be subject to the
final outcome of the pending writ petition, wherein the
following order dated 12.06.2019 was passed:-
“We do not find any cogent grounds to interfere
with the order of the Division Bench impugned. The
selected candidates have given an undertaking that they
shall not claim any lien or right over the appointments
which shall be subject to the result of the writ petition.
The special leave petition is not entertained.
We, however, request the Chief Justice of the High
Court to constitute a special Division Bench to
expeditiously hear the writ petition on day-to-day basis
without granting unnecessary adjournments and to dispose
of the writ petition as expeditiously as possible preferably
within thirty days form the date of constitution of the
Bench.
The special leave petition and pending applications
are accordingly disposed of.”
12.In pursuance of the said order, on the application moved
by the learned Advocates appearing for the petitioners dated
07.07.2019, this Special Division Bench has been constituted by
Hon'ble the Chief Justice by the order dated 15.07.2019. The
matter was placed before this Bench on 02.08.2019 with the
office report dated 01.08.2019 alongwith all connected writ
petitions pending at Allahabad High Court. The arguments of
learned Advocates for the petitioners commenced on the said
date i.e. on 02.08.2019 itself, but could not be concluded and
as such the matter was fixed for 06.08.2019 in the additional
cause list. Further hearing was resumed on 19.08.2019 and
continued on day-to-day basis uptil 22.08.2019.
8 of 65
13.The arguments of learned Additional Advocate General
was heard and concluded on 26.08.2019 and the counsel for
the private respondent commenced his arguments on that date
itself. The matter was posted on 28.08.2019 for further hearing,
but could not be taken uptill 04.09.2019 because of the strike
observed by the lawyers of this Court. The arguments of Sri
Sankalp Narain learned Advocate for the private-respondent
concluded today. No other counsel had appeared on behalf of
the private-respondents in any of the connected matters.
14.To summarise the arguments of the learned counsels for
both sides, Sri R.K. Ojha learned Senior Advocate appearing for
the petitioners submits that the process of normalization
adopted by the respondents for preparation of the eligibility list
is not contemplated in the Recruitment Rules. Even the
Selection Board while issuing notification dated 17.06.2016 in
Clause 4.1 and 4.2 thereunder under provided that selection
would be made on the criteria of 50% marks being the
qualifying marks in the written examination and select list
calling the candidates for participation in the process of
scrutiny of documents and Physical Standard test would be
drawn on the said criteria.
15.In the notification dated 28.06.2017 (which was issued in
Hindi), it was categorically provided that the candidates who
did not attain 50% marks would be disqualified and would not
be treated as eligible candidates. In paragraph no.'4' of the said
notification it was provided that normalisation of the total
marks obtained by the candidates taking the question paper as
one unit would be made by applying Equi Percentile method
9 of 65
for the purpose of drawing inter-se merit of the selected
candidates. The Selection Board had committed illegality in
drawing the final merit list by exclusion of all those candidates
who did not attain 50% normalized marks (by applying the
Equi-percentile Method) in each subject though they attained
50% actual/raw marks in each four subjects of the question
paper for written examination and, thus, were qualified to be
included in the list of eligible candidates for participation in
the further stage of “Physical test and scrutiny of document”
as per the Rule 15 (c) of the Recruitment Rules. The criteria of
selection had been changed during the course of the selection
process which was not permissible in view of the settled legal
proposition that rules of the game cannot be changed during
mid of the game.
16.Sri Ashok Khare learned Senior Advocate for the
petitioners adding to the above contentions submits that
minimum qualifying marks has been provided in the statute.
The Equi-percentile Method only denotes inter-se ranking of the
candidates and cannot be confused with the “qualifying marks”
to be attained by a candidate for being included within the
zone of consideration. The question paper consisted of multiple-
choice questions to be evaluated by the computerized scanner.
There was no examiner variability nor there was any optional
paper in the main written examination. The syllabus displayed
by the Board on its Website appended as Schedule-I to the
advertisement notification dated 17.06.2016 was uniform for
preparation of the question papers comprising of all
compulsory subjects. The question papers were set up from the
various topics provided in the common syllabus for the subject
10 of 65
Hindi, Legal/General Knowledge, Numerical/Mental Ability, I.Q
and reasoning. There was, therefore, no possibility of variation
in the difficulty level of the question papers and, even if this
was so, moderation of question papers itself was required to be
done by the Selection Board. Looking to the pattern of
examination which was Online test of multiple-choice questions,
it cannot be said that the candidates of different batches were
required to undertake the examination at different difficulty
levels. In-fact the syllabus of the examination provided by the
Selection Board sets common difficulty level of the questions
from the entire syllabus uniformly for all candidates of different
batches.
17.Placing three different sets of questions papers filed with
the Compilation provided by the learned Senior Advocate, it is
contended that there was no justification for adoption of
normalization process (Equi-percentile Method) for preparation
of list of “eligible candidates”. The method adopted by the
Selection Board was contrary to the Recruitment Rules which
provides the entire scheme for evaluation of the question papers
of written examination for the purpose of preparation of the
merit list. Reliance has been placed upon the judgement of the
Supreme Court in Sanjay Singh and another. Vs. U.P. Public
Service Commission, Allahabad and another
4
, to submit that the
“scaling system” adopted by the Selection Board by
normalization of actual/raw marks obtained by the candidates
in the written examination was not permitted being contrary to
scheme of the Recruitment Rules.
4.2007 (3) SCC 720
11 of 65
18.It is pointed out that the Supreme Court while answering
the question no.(iii) in Sanjay Singh
2
had held that the “scaling
score” or “scaling mark” cannot be considered to be “marks
awarded to the candidates in the written examination” and,
thus, concluded that scaling violated the recruitment rules
therein.
19.The Recruitment Rules provided for preparation of merit
list on the basis of “marks awarded to the candidates in the
written examination” which can only be read as “percentage of
marks” awarded on the answer scripts evaluated by
computerized scanner. Appendix-'3' which provided syllabus for
the written examination and mode & method thereof, attached
to the original Recruitment Rule' 2015 had been deleted w.e.f.
03.11.2015 with the First amendment of the Recruitment Rules,
but the legislature consciously has retained Rule 15 (b) of the
Recruitment Rules providing maximum marks in each of the
four subjects of the written examination and the minimum
passing percentage. The legislative intent to provide the
qualifying criteria is explicitly clear. Exclusion from the zone of
consideration of the candidates who had scored 50% or more
marks in each of the four subjects of the question papers
(qualified under the rules), therefore, was not permitted.
20.Reliance is placed on the judgement of the Supreme
Court in State of Kerala Vs. Kumari T.P. Roshana & another
5
to
submit that it was held therein that minor differences in the
marks obtained by the candidates in the qualifying examination
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3) SCC
720
5.1979 (1) SCC 572
12 of 65
conducted by different Universities with different standard,
question papers and set of examiners are inconsequential.
21.Sri Tarun Agrawal learned Counsel urged that the
percentage is a measure of the absolute/raw marks obtained by
a candidate on a scale of 100 which is calculated by the
formula= (marks obtained upon/total marks) x 100. Whereas
'percentile' is the relative rank of the candidate within his
group which can be seen from the formula= (total number of
students)-of the candidates rank)/(total number of students-1).
22.“Hundred (100) percentile” means the candidate is above
99% candidates who had appeared in the test in the same batch
or in other words it can be understood as that there are 0%
candidates above him in his batch. Similarly, 90% percentile
means the candidate is above 90% candidates or 10%
candidates are above him. The 'percentile' thus, denotes the
relative standing of a candidate vis-a-vis other candidates in his
group or batch.
23.The 'Standardized Equi-percentile Method' which is applied
by a standard formula {“Y=Y1+((Y2-Y1))/((X2-X1))x(X-X1)”},
has been derived to give level playing field to the candidates of
different group or batches, looking to the difference in the
standard of papers, for drawing the inter-se merit of all
candidates for final selection. A batch where maximum number
of students undertook examination if taken as the 'reference
batch' or 'base batch'; by using both 'marks' and 'percentile' of
the candidates of 'reference batch' in comparison to the
candidates of other batches the normalized score i.e. value of
'Y' of candidates of those batches is obtained.
13 of 65
24.The values being used in the aforesaid formula are:-
•Y1= marks corresponding to immediate lower percentile
of ref.batch
•Y2= marks corresponding to immediate upper percentile
of ref. batch
•X2= immediate upper percentile of ref. batch
•X1= immediate lower percentile of ref. batch
•X= percentile of the candidate of the target batch
•Y= normalized score of the candidate of the target batch
25.The value of “Y”, i.e. 'normalized mark', thus, only
denotes the position or placement or ranking of the candidates
of different batches in relation to the 'reference batch' or 'base
batch', as 'Y-1' and 'Y-2' in the formula are the marks
corresponding to the immediate 'lower and upper percentile' of
the 'reference batch' and 'X-1' and 'X-2' are immediate 'lower
and upper percentile' of 'reference batch'; whereas 'X' is the
percentile of the candidate concerned whose marks are to be
normalized by finding the value of “Y”.
26.It is contended by the learned Counsel that Equi-percentile
Method based on the doctrine of level playing field, by using
both 'raw marks' and 'percentile' of the candidates of the
reference batch and 'percentile' of the candidates of other
batches for finding the value of “Y” (normalized marks), places
the candidates of other batches somewhere in between the
candidates of the reference batch so as to give them their
position in the common inter-se merit list. The 'normalized
marks' are, thus, used for the purpose of preparation of inter-se
merit of the candidates appearing in multiple batches with
14 of 65
different sets of question papers in one competitive
examination, tested on different difficulty level.
27.From the prospectus of Medical Entrance Test conducted
by AIIMS, New Delhi, it is demonstrated that it was notified
therein for stage 2, the candidate who had obtained “50%
percentile” or above in the written examination (at stage no.1)
would be called. The prospectus of AIIMS, New Delhi, January'
2018 of a fellowship programme, has been placed before us to
submit that 'percentile' is the score based on relative
performance of the candidates who appeared in the
examination.
28.It is further contended that even the process of
normalization as adopted in M.A.H, M.B.A, M.M.S, CET 2015
which has been taken as a model for adopting normalization in
the examination-in-question, provides that Equi-percentile
Method would be applied at the time of preparation of merit
list for admission.
29.It is contended that the eligibility list as per Rule 15 (b)
can only be prepared on the basis of raw/actual marks of the
candidates in the written examination. As there is no indication
in the rule that normalized marks will be used as “qualifying
marks” to determine “eligibility of candidates”, there is
inherent flaw in the method adopted by the respondent. The
normalized marks cannot be treated either as percentile (in
their own batch) or actual or raw marks of the candidates.
30.By taking clue from a judgement of the High Court of
Rajasthan in Sarita Naushad Vs. R.P.S.C
6
, it is contended that
6.2009 SCC Online Raj 4616
15 of 65
in the instant matter, scaling formula has resulted in unjust,
unreasonable, irrational and arbitrary increase and decrease of
marks to the detriment of the petitioners vis-a-vis persons who
had been selected on the basis of normalized marks. The
candidates who were not qualified as per the actual marks
obtained were not entitled to be declared qualified as per the
scaled marks or normalized marks.
31.The challenge to the said judgement was turned down by
the Supreme Court in Rajasthan Public Service Commission Vs.
Balveer Singh Jat & others
7
, noticing that the method of scaling
for the purpose of assessment of answer sheets adopted by
Rajasthan Public Service Commission for calling the candidates
for interview was bad.
32.In order to substantiate his above submissions, Sri
Agrawal has placed judgement of the Supreme Court in
Mahinder Kumar & others Vs. High Court of Madhya Pradesh
8
.
(Emphasis was laid to paragraphs nos.13 to 17, 19 to 24, 40,
50, 51, 53 & 55). It is contended that the normalized marks
were not the basis therein for determining eligibility of the
candidates to participate in the viva-voce or interview in the
scheme of the Recruitment Rules namely Madhya Pradesh
Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Rules' 1994
amended in the year 2005.
33.Sri Shashi Nandan learned Senior Counsel appearing for
the petitioners in one of the connected writ petition, however,
vehemently contends that under the scheme of the Recruitment
Rules, 15(b) & (e), there was no room for any deviation in the
7.2015 (13) SCC 620
8.2013 (11) SCC 87
16 of 65
procedure of evaluation of performance of the candidate in the
written examination. The role of the Selection Board was
specified as to how it will prepare the select list of qualified
candidates. It was absolutely beyond the jurisdiction of the
Selection Board to prescribe or add any procedure for selection.
The first part of Rule 15(b) is specific with regard to the
written examination, the type of question paper, the maximum
number of marks assigned to each subject or section of the
question papers and the requirement that the candidates have
to obtain '50% marks' in each of the four subjects for being
eligible for recruitment. Only option given to the Selection
Board was to decide the syllabus of the examination and the
mode and manner in which the written examination was to be
conducted. The words used in the latter part of clause (b) of
Rule 15 “detail procedure for written examination shall be
determined by the Selection Board” and will be displayed on
its website does not include the procedure for evaluation for
selection. Even Rule 15(e) states that final merit list shall be
determined on the basis of marks obtained by each of the
candidates in the written examination under clause (b) of the
said rule. It was, therefore, not open for the Selection Board to
adopt any normalization process or Equi-percentile Method at
all even to draw the final merit list. The process of selection of
candidates being enumerated elaborately in the rules will also
include the procedure for evaluation of the performance of
candidates.
34.For the aforesaid, the whole procedure adopted by the
Selection Board in preparation of final select list dated
28.02.2019 is in contravention of the mandatory requirement of
17 of 65
the Recruitment Rules. The notification dated 28.06.2017
displayed by the Board on its website is, therefore, liable to be
quashed being in violation of the recruitment rules.
35.Learned Senior Counsel referring to Mahinder Kumar
7
submits that the said decision fortifies his argument that once
the procedure for selection is determined in the Rule, it is not
open to the selecting body or agency to deviate from the
procedure. The normalization process upheld by the Supreme
Court therein was in view of the rules prevailing, wherein the
High Court was empowered to formulate its own procedure,
which is not so in the present case.
36.Even the brochure of advertisement notification dated
17.06.2016 specified in clause 4-(i) that the candidates not
attaining 50% marks in each subject would not be eligible for
recruitment. After the notification of the vacancies providing
conditions of selection in terms of the rule, it was not open for
the Selection Board to adopt any other method for preparation
of the merit list.
37.Sri Satendra Tirpathi learned Advocate for the petitioners
adopting the arguments of Sri Ashok Khare and Sri R.K. Ojha
learned Senior Counsel urged that the respondent have
misconstrued the normalized marks as percentage, to decide
cut-off marks for preparation of list of qualifying candidates.
Even otherwise, as per the Selection Board's notification dated
28.06.2017, the normalized marks could be worked out only on
the total marks obtained by a candidate in the question papers
taken as a unit and not for each section/subject. The petitioners
7.Mahinder Kumar & others Vs. High Court of Madhya Pradesh, 2013 (11) SCC
87
18 of 65
could not be declared failed for having not obtained normalized
marks in anyone of the four sections. Reliance is placed on the
judgement of the Supreme Court in U.P.S.C Vs. S. Thiagarjan
& others
9
and State of Madhya Pradesh and others vs. Sanjay
Kumar Pathak and others
10
to submit that meritorious
candidates cannot be left out from the select list and the
selection process marred by arbitrariness and unfairness cannot
be allowed to stand. The selected candidates do not have any
legal right merely for the fact that their names were found in
the select list as no indefeasible right for appointment accrue in
their favour.
38.Ms. Shreya Gupta learned counsel for the petitioners
assailing the notification dated 28.03.2019 for applying
Standardized Equi-percentile Method for normalization of marks
obtained by the candidates in the written examination submit
that the said method was not in consonance of the Recruitment
Rules. The Selection Board's notification dated 28.03.2019
deviating from the procedure of selection is in transgression of
its delegated power under the Recruitment Rules. It is settled
that if a particular field is occupied by a statutory legislation,
there is no scope for any addition or subtraction by any
subordinate legislation.
39.She further proceeded to challenge the validity of clause
15 (f) of the first Amendment Rules' 2015 which provides that
the candidates whose names are in the select list prepared as
clause (e) of the Rule 15, if found unsuccessful in the medical
examination conducted by a Board under the Rules shall be
9.2007 (9) SCC 548
10.2008 (1) SCC 456
19 of 65
declared unfit by the appointing authority, and the vacancies
occurred shall be carried forward for next selection.
40.Contention is that the medical examination of the selected
candidates is only one of the four stages of selection; first stage
being written examination under Rule 15(b); second scrutiny of
documents and Physical Standard Test as per clause (c) of Rule
15; third Physical Efficiency Test as per clause (d) of Rule 15
and fourth and last stage is medical test as per clause (f) of
Rule 15. Till medical test is conducted, the process of selection
is not over and as such the vacancy occurred on account of any
candidate having been found unsuccessful in the medical test
will be the existing vacancy of the same selection. The principle
of carry forward of the vacancy for the next recruitment year
can only be related to the vacancies pertaining to Scheduled
Caste, Scheduled Tribes and Women, that too due to
unavailability of suitable candidates of that category.
41.The State of U.P. had given an undertaking to the
Supreme Court in Manish Kumar Yadav
1
on an affidavit that
all existing vacancies to the post of Constable and Sub Inspector
of police will be filled up within the time lines given therein
and in case of breach of the same, the officers of the State
would be personally liable. As many as 821 vacancies in total
are proposed to be carried forward which include Scheduled
Caste, Scheduled Tribes & women and also include vacancies
occurred on account of exclusion of those candidates who could
not qualify the medical test. It is thus, vehemently contended
that the vacancies occurred on account of exclusion of the
candidates failing in the medical test, from the final select list
1.(Manish Kumar Yadav Vs. State of U.P. & others), Special Leave to Appeal (C) No.13551 of 2019
20 of 65
under Clause (e) of Rule 15, are to be filled by placement of
the candidates from list-7 (of non-selected candidates) by
bringing down the cut off marks.
42.With the above contentions, the submissions of learned
Advocates appearing for the petitioners have been concluded.
All other Advocates appearing for the petitioners in this bunch
have either adopted the arguments noted above or reiterated
the same. We, therefore, need not burden this judgement with
their arguments separately.
43.Sri Manish Goyal learned Additional Advocate General on
behalf of the State-respondents and the Selection Board, in
reply to the arguments advanced by the learned counsels for
the petitioners and to justify the process of normalization
adopted by the Selection Board made the following
submissions:-
44.The first submission is that the normalization is an
universally approved standard method applicable in case of
variable difficulty level of question papers and, therefore,
application thereof was well within power of evaluation of the
Selection Board. Placing the affidavit dated 12.04.2019 filed on
behalf of the respondent Nos.2 & 3, it is contended that
normalized marks “Y” were derived after applying the Equi
Percentile formula on fraction of 100 and as such denote
percentage and not percentile. The said formula was worked
out by the agency which had conducted the examination and
prepared result for the Selection Board. The experts/statistician
of the company had applied Equi-percentile Method in co-
ordination with and under the instructions of the Selection
21 of 65
Board. It is wrong to assert that normalized marks achieved by
the Equi-percentile Method and percentile are one and the same
thing. Ultimate value of “Y” being value out of '100' is
percentage marks of the candidates. The equation of Equi
Percentile formula re-written on fraction of 100 at page no.'10'
(Annexure no.2 of the said affidavit) is noted hereunder:-
45.It is then contended that looking to the huge number of
applicants more than 6 lacs, the Selection Board had decided to
adopt Equi-percentile Method to normalize the marks of
candidates who appeared in multiple batches with different sets
of question papers as there was no other method to keep
uniformity in the question papers. The scaling method is well
accepted norm to adjudge the merit and suitability of the
candidates in a public examination, in as much as, the very
concept of examination presumes prescription of same bench-
mark for all candidates. The adoption of normalization process
in order to streamline the whole selection in a fair and just
manner as has been approved by the Supreme Court in
Mahinder Kumar
7
, Sunil Kumar & others Vs. Bihar Public
Service Commission & others
11
& Disha Panchal & others Vs.
Union of India the Secrtary & other with connected matters
12
.
7.Mahinder Kumar & others Vs. High Court of Madhya Pradesh, 2013 (11) SCC
87
11.2016 (2) SCC 495
12.AIR 2018 SC 2824
22 of 65
46.Sri Goyal by reading different clauses of Rule 15 submits
that the entire scheme of the Rules gives ample power to the
Selection Board to evaluate the performance of the candidates
for the purpose of preparation of the merit list. As the power
of selection was given to the Selection Board, modalities thereof
could be adopted by the Selection Board by moulding the
procedure. Rule nowhere restricts the power of the Selection
Board to decide eligibility as 50% criteria of marks, as latter
part of Rule 15(b) cannot be read in isolation. Merit list of the
qualifying candidates had to be prepared at the stage of second
part of Rule 15 (b) itself; i.e., at the time of preparation of
result of the written examination, as only the scores in the
written examination were to used for preparation of the select
list contemplated as final list in Rule 15 (e) of the Recruitment
Board, from amongst those candidates who had qualified all
subsequent stages of selection.
47. The Recruitment Rule contains adequate flexibility and is
not in rigid framework as is sought to be contended by Sri
Shashi Nandan learned Senior Advocate and other counsels for
the petitioners. It cannot be accepted that there was no scope
at all for application of normalization method or the power of
the Selection Board was limited in this respect. The action of
the Selection Board in issuance of the notification dated
28.06.2017 intimating its decision to adopt normalization
procedure was well within the four corners of the statutory
rules.
48.It is vehemently argued that the Supreme Court in
Mahinder Kumar
7
upheld the normalization process with the
7. Mahinder Kumar & others Vs. High Court of Madhya Pradesh, 2013 (11) SCC 87
23 of 65
observation in paragraph no.'37.5' which states that the
expression “evaluation” would take into its folds the minimum
marks to be scored, the manner in which the evaluation is to
be made and in the event of any requirement, to equalise the
merits of the candidates in written examination and follow any
appropriate procedure in consonance with law, in order to
ultimately arrive at a fair process by which the candidate can
be called for interview, based on the evaluation of the marks in
the written examination.
49.Submission is that no-one has challenged the adoption or
application of the said method. Only grievance is about the
stage when it could be applied. On harmonious construction of
Rule 15 (b) and 15 (e), the expression “50% marks” be read as
“normalized marks”, relative interpretation is to be given to
normalized marks being equal to the qualifying marks, more-so
when normalized marks also denote percentage having been
calculated on the scale of 100, as per the equalise formula
adopted by the expert agency in consultation with the Selection
Board. The expression “more than one day in different shifts
with separate question papers” has to be read positively to
hold that the Selection Board was empowered to adopt “process
of evaluation” for assessment of performance of the candidates
in the written examination as “the pattern of evaluation has to
be in consonance with the pattern of the examination”.
50.To substantiate the plea of purposive and harmonious
construction of the statutory Rule 15 (b) read with 15(e),
reliance is placed upon the judgement of the Supreme Court in
Paradise Printers & others Vs. Union Territory of Chandigarh &
24 of 65
other
13
; D. Saibaba Vs. Bar Council of India & another
14
; Tirath
Singh Vs. Bachittar Singh & others
15
& Rakesh Wadhawan &
others Vs. Jagdamba Industrial Corporation & others
16
.
51.He vehemently urged that the reliance placed on the
decision in Sanjay Singh
2
is misplaced in view of the Supreme
Court decision in Sunil Kumar & others
10
wherein it is clarified
that Sanjay Singh
2
did not lay down any binding principle of
law or directions or even guidelines with regard to the holding
of public examination; evaluation of papers and declaration of
results by the examining body. Emphasis was laid on the
observations in paragraph No.'17' of Sunil Kumar & others
10
to
submit that holding of public examination is a complex task
and the procedure for preparation of syllabus, evaluation of
answer papers and preparation of result are the areas which
have to be left to the expert bodies in the field and the scope
of judicial review is limited to instances of arbitrary or
malafide exercise of power. No such grounds have been taken
by the petitioners in their efforts to challenge the select list. It
is contended that the correctness of a statistical equation is
within the domain of expert and normalized score achieved
therefrom cannot be said to be invalid. (Reference Rutvj Waze
& another Vs. Union of India & others
17
).
13. AIR 1988 SC 354
14.2003 (6) SCC 186
15.AIR 1995 SC 830
16.2002 (5) SCC 440
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and
another, 2007 (3) SCC 720
10. Sunil Kumar & others Vs. Bihar Public Service Commission & others, 2016
(2) SCC 495
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and
another, 2007 (3) SCC 720
10.Sunil Kumar & others Vs. Bihar Public Service Commission & others, 2016
(2) SCC 495
17.2015 (SCC) online (MP) 3482
25 of 65
52.It is lastly contended that the decision of the Board to
adopt normalization method for preparation of merit list was
notified vide notification dated 28.06.2017 displayed on its
website. The candidates being fully aware had participated in
the selection without raising any dispute. Now having been
declared unsuccessful, they cannot be permitted to challenge
the procedure. Reliance is placed on the decisions of the
Supreme Court in K.H. Siraj Vs. High Court of Kerala &
others
18
; D. Saroj Kumari Vs. R. Helen Thilakom & others
19
;
Ashok Kumar & another Vs. State of U.P. & others
20
, Union of
India & others Vs. C. Girija & others
21
.
53.Further that mere participation in different stages of
selection does not vest any right in the candidates much less a
legitimate expectation to be included in the final list. Reference
Union Public Service Commission Vs. S. Thiagarajan & others
22
& Sanjay Kumar Pathak
9
.
54.Any mistake in the process of the selection does not make
the entire selection invalid. Reference Man Singh Vs.
Commissioner, Garhwal Mandal Pauri & others
23
.
55.In the end, it is contended that the selected candidates
have not been put to notice in various writ petitions connected
with this bunch. The relief as prayed by the petitioners,
therefore, cannot be granted in absence of the affected persons
being party.
18. 2006 (6) SCC 395
19. 2017 (9) SCC 478
20. 2017 (4) SCC 357
21. 2019 SCC Online SC 187
22. JT 2007 (8)
9. State of Madhya Pradesh Vs. Sanjay Kumar Pathak, 2008 (1) SCC 456
23. 2009 (11) SCC 448
26 of 65
56.Sri Sankalp Narain learned Advocate for the selected
candidates, private-respondents, impleaded in the leading Writ
Petition No.23733 of 2018 submits that to apply normalization
process the notification was issued by the Selection Board and
all the lists from 'list-1 to list-8' displayed at the website on
28.02.2019. Prior to the declaration of final result, a Writ
Petition No. 16160 of 2018 was filed by some candidates with
the prayer that the Selection Board be directed to adopt
normalization method as notified and the said writ petition had
been rendered infructuous with the declaration of the final
result. It is contended that due to variance of question papers
individual performance of the candidates varied in different
batches. More than 6 lacs candidates had participated in the
selection and unless and until normalization was adopted at the
stage of Rule 15 (b), i.e; for preparation of eligibility list for
calling the candidates for further process of selection, the entire
object of adoption of the normalization process would be
negated. The candidates who were required to answer tough
question papers cannot be asked to compete with the candidates
who answered an easy question paper. Variance in the question
papers in different shifts had an impact on the overall
assessment of performance of the candidates which was ruled
out by the Selection Board by applying normalization at the
stage of preparation of eligibility list under Rule 15(b).
57.The marks obtained in the written examination under both
Rule 15(b) and (e) should be read as “normalized marks” as
Rule 15 (e) itself contemplates for preparation of merit list on
the basis of marks obtained by the candidates in the written
examination. The stages of application of Equi-percentile
27 of 65
Method cannot be different for the language employed in Rule
15(b) and 15(e). The methodology of equalizing marks obtained
in the written examination had to be adopted at the threshold.
58.In rejoinder, Sri Ashok Khare Senior learned Counsel has
placed the judgement of the Supreme Court in Umesh Chandra
Shukla Vs. Union of India & others
24
, to state that it was held
therein that the examining body cannot deviate from the
Recruitment Rules while drawing the merit list so as to include
ineligible candidates in the list of qualified candidates to appear
at the viva-voce itself. With reference to Dr. Krushna Chandra
Sahu and others Vs. State of Orissa and others
25
, it is contended
that the Selection Board does not have inherent jurisdiction to
lay down the norms for selection or to adopt its own standard
in addition to what is prescribed under the Rules, as it would
amount to legislating a rule of selection, which is beyond its
power.
59.Placing Motilal Padampat Sugar Mills Vs. State of U.P.
26
,
it is contended that principle of waiver or estoppel would not
be attracted in the instant case, in as much as, the basic
requirement for applying the said principle is that the act of
waiver must be an intentional act with knowledge. The persons
who are said to have been fully informed of their right and
have acted with full knowledge of such right can only be said
to have intentionally abandoned it. It is contended that the
Selection Board did not even adhere to the procedure notified
by it in the notification dated 28.06.2017.
24. 1985 (3) SCC 721
25. AIR 1996 SC 352
26. 1979 (3) SCC 409
28 of 65
60.Placing the judgement of Supreme Court in Veerendra
Kumar Gautam & others Vs. Karuna Nidhan Upadhayay
27
and
the Division Bench of this Court in Karuna Nidhan Upadhya &
another Vs. State of U.P. & others
28
, it was asserted that
estoppel and acquiescence by conduct on the principle of
waiver have no role where the selection process is marred by
glaring illegality in the procedure of selection.
61.Having noted the rival contentions, at length, the
submissions of the learned counsel for the petitioners, in brief
can be summarized as follows:-
(i)the Selection Board has been conferred limited power
under the Recruitment Rules only to determine the procedure
of written examination;
(ii)the Selection Board is not vested with the power and
authority to determine the procedure of selection which has
been prescribed by the rule making authority;
(iii)the eligibility condition of obtaining 50% marks by a
candidate is a condition precedent mandated under the Rules,
which is not subject to any alteration or substitution by
normalized score;
(iv)normalization is a method of evaluation falling within the
ambit of written examination and not an eligibility condition,
normalized score at the best can be applied for preparing the
select list in order of merit;
(v)the Selection Board by eliminating the qualified
candidates having scored 50% marks in each subject by
applying the normalized score exceeded its power and
authority vested by the Recruitment Rules;
62.In rebuttal the submissions on behalf of the respondents,
can be briefly summarized as follows:-
27. 2016 (14) SCC 18
28. 2012 (5) ADJ 182
29 of 65
(i) the Selection Board is vested with the power and
authority to equalize the marks obtained by a candidate in the
backdrop of written examinations held on multiple
dates/multiple shifts with different papers;
(ii)the Selection Board has inherent power to adopt a fair
and just procedure by equalizing the marks to place all the
candidates on a level playing ground;
(iii)the Selection Board has power to equalize the eligibility
marks (50%) prescribed under the Rules in an examination held
in multiple shifts with different standard of papers;
(iv)candidates appearing in difficult papers would be in
disadvantageous position as against candidates appearing in
relatively easier question papers. The word ‘marks’ used in
Sub-clause (b) and (e) of Rule 15 would mean and include
normalized marks.
(v)petitioners after participating in the selection process
cannot turn around to challenge the same.
63.Rival submissions fall for consideration.
64.The question that arises for our consideration is: (i)
whether the Selection Board was within its power and authority
in applying the normalized percentile score to determine the
eligibility of the candidates or in the alternative whether the
Selection Board transgressed its authority to alter/substitute the
eligibility criteria (50% marks) mandated in Sub-clause (b) of
Rule 15 by normalized score to non-suit, all such candidates
from the recruitment process who obtained 50% marks and
above; (ii) the scope of judicial review of the Standardized
Equitable Percentile Method adopted by the Selection Board.
65.The Selection Board came to be constituted under the
Recruitment Rules promulgated by the Governor in exercise of
powers under the Police Act, 1861. The Recruitment Rules was
notified on 19 August 2014, subsequently, amended on 3
December 2015, in supersession of all existing Rules and
Orders, issued in this behalf, with a view to regulating the
30 of 65
selection, promotion, training, appointment, determination of
seniority and confirmation etc. of Sub-Inspector and Inspector
of the Civil Police in Uttar Pradesh Police Force.
66.The scheme for recruitment is provided under the Rule 15
of the Recruitment Rules. The relevant portion of Rule 15, for
the purposes of the instant case is extracted:-
“Procedure for Direct Recruitment to the post of
Sub-Inspector:-
15. (a) Application form and call letter:-
A candidate shall fill only one application Form.
The Board will accept only online applications. The
application of candidates, who fill more than one
form, may be rejected by the Board. The Head of the
Department, in consultation with the Board, shall fix
an application fee for any recruitment. Detailed
procedure of filling the Application Form and
issuance of call letter shall be determined by the
Board and will be displayed on its own website.
The Government may change the number of
vacancies for any recruitment at any time before the
first examination and may also cancel any
recruitment at any time or stage of recruitment
without assigning any reason therefor.
(b) Written examination
Candidates whose applications are found correct,
shall be required to appear for written test of 400
marks. In this written examination, the Board will
keep one objective type question paper of the
following subjects:-
Subject Maximum
Marks
1. General Hindi 100 marks
(objective type)
2. Basic Law/ Constitution 100 marks
31 of 65
/General Knowledge (objective type)
3. Numerical and Mental
Ability Test
100 marks
(objective type)
4. Mental Aptitude
Test/I.Q. Test/Reasoning
100 marks
(objective type)
Candidates failing to obtain 50% marks in each
of the above subjects shall not be eligible for
recruitment. The detailed syllabus for the examination
will be decided by Board and will be displayed on its
own website. The Board will decide at its own level
to conduct written examination on one date in a
single shift or in more than one shift or on more
than one shift or on more than one date in different
shifts with different question paper. Detailed
procedure for written examination shall be
determined by the Board and will be displayed on its
own website.
(c) Scrutiny of documents and physical standard
test:-
Candidates found successful in written
examination under clause (b) shall be required to
appear in Scrutiny of Documents and physical
Standard Test. Keeping in view the total number of
vacancies, the Board shall decide at its own level,
the number of candidates on the basis of merit to be
called for this test. Physical Standards for candidates
are as follows:-
1. Minimum Physical Standards for male candidates
are as follows:-
(a) Height:-
xxxxxxx
(b) Chest:-
xxxxxxx
2. Minimum Physical Standards for female candidates
are as follows:-
32 of 65
(a) Height:-
xxxxxxx
(b) Weight:-
For conducting this examination a committee
will be constituted by the Board in which a Deputy
Collector nominated by the District Magistrate will be
the Chairman and the Deputy Superintendent of
Police nominated by the District Superintendent of
Police will be the member, the other members of the
committee shall be nominated by the District
magistrate or the Superintendent of Police if
requested by the Selection Board.
Detailed procedure for this examination shall be
determined by the Board and will be displayed on its
own website.
xxxxxxxxxxxxx
(c) Physical Efficiency test:-
Candidates found successful in Scrutiny of
Documents and Physical Standard Test as per clause
(c) will be required to appear in Physical Efficiency
Test, which will be of qualifying nature.
xxxxxxxxxxxxxxxxxx Detailed procedure for Physical
Efficiency Test shall be determined by Board and will
be displayed on its own website. For conducting this
exam a committee will be constituted by Board
xxxxxxxxx
(e) Selection and final merit list:-
From amongst the candidates found successful in
Physical Efficiency Test under clause (d), on the basis
of marks obtained by each candidate in written
examination under clause (b). Board shall prepare, as
per the vacancies, a select list of each category of
candidates, as per order of merit keeping in view of
reservation policy and send it with recommendation
to the Head of the Department subject to Medical
test/character verification. No waiting list shall be
prepared by the Board. List of all candidates with
33 of 65
marks obtained by each candidate shall be uploaded
on its website by the Board. The Head of the
Department shall after his approval forward the list
sent by the Board to the Appointing Authority for
further action.
Note:- xxxxxxxxx
(f) Medical Test:-
The candidates whose names are in the select list as
per clause (e), will be required to appear for Medical
Examination by the Appointing Authority. For
conducting the medical examination, the Chief
Medical Officer of the concerned district shall
constitute a medical Board, which will have 03
doctors, who will conduct Medical Examination as
per “Police Recruitment Medical Examination Forms”
as prescribed and codified by the Head of Department
in consultation with the Director General of Medical
Health. Any candidate not satisfied by his Medical
Examination, may file an appeal on the day of
examination itself. xxxxxxxx The candidates found
unsuccessful in Medical Examination shall be declared
unfit by the Appointing Authority and such vacancies
shall be carried forward for next selection”.
(emphasis supplied)
67.The Selection Board issued a notification/advertisement
dated 17 June 2016, inviting applications from eligible
male/female candidates for following posts:-
Sub-Inspector Civil Police (Male)- 2,400
Platoon Commander (P.A.C.) (Male)- 210
Fire Brigade Section Officer (Male)- 97
------------------------
Total 2,707
------------------------
Sub-Inspector Civil Police (Female)- 600
34 of 65
68.The advertisement specified that the selections would be
made in terms of Recruitment Rules. The candidates were
required to submit forms online and take the written
examination online. The Selection Board by notification
informed that the candidates were required to answer objective
type 160 questions divide into four subjects/sections, each
carrying 100 marks. Two hours time was prescribed for the
examination, each question was of 2.5 marks and there was no
provision for negative score. The relevant portion of
notification is extracted:-
Sl.
No.
Subject Number of
Questions
Maximum
Marks
Time
1.General Hindi 40 100 2.00
2.Basic Law/Constitution
General Knowledge
24
16
100 Composite
3.Numerical and Mental
Eligibility Test
40 100 Time
4.Mental Aptitude Test/I.Q.
Test/Reasoning
40 100
Each Questions 2.50
Marks
Total
Questions
160
Total
Marks 400
2.00
Hours
69.The candidates were required to obtain 50% marks in
each of the four subjects to qualify for the subsequent round of
recruitment process i.e. document verification/physical
efficiency test. In other words, a candidate failing to obtain
50% marks in any of the subjects would render him/her
ineligible to participate in the further selection process.
70.The Selection Board vide notification dated 28 June 2017
disclosed that 6,30,926 application forms were received,
35 of 65
consequently, the Selection Board having due regard to the
large number of candidates informed the candidates that the
online examinations would be conducted on multiple dates in
different shifts and in different question papers for each
date/shift. Since the level of multiple question papers would
vary, accordingly, Normalization based on “MAH-MBA/MMS
CET 2015” applying Standardized Equi-Percentile method
would be adopted.
71.Emphasis has been placed by the respondents upon
paragraph nos. 4 and 9 of the notification to contend that in
the backdrop of the Recruitment Rules and the advertisement,
the Selection Board by notification dated 28 June 2017,
primarily specified that Normalization would be adopted and
the raw/actual marks obtained by the candidates would be
equalized. In other words, candidates scoring less than 50% of
normalized score would not be eligible. Paras 4 and 9 are
extracted:
“4& mi fujh{kd ukxfjd iqfyl] IykVwu dek.Mj] ih,lh ,oa
vfXu’keu f}rh; vf/kdkjh ds inksa ij lh/kh HkrhZ vkWuykbu fyf[kr
ijh{kk esa lQy vH;fFkZ;ksa ds izkIrkadks dh Js"Brk ds vk/kkj ij lapkfyr
gks jgh gSA vH;fFkZ;ks dh la[;k ds vuqlkj vkWuykbu fyf[kr ijh{kk ,d
ls vf/kd frfFk;ksa esa fofHkUu ikfy;ksa esa fofHkUu iz’ui=ksa ds lkFk lapkfyr
djkus dh vko’;drk mn~Hkwr gqbZ gSA izR;sd ikfy;ksa ds iz’u&i=
vyx&vyx gksaxs ftuesa lekurk u gksus dh lEHkkouk ds n`f"Vxr fofHkUu
ikfy;ksa esa bu vyx&vyx iz’ui=ksa esa vH;fFkZ;ksa }kjk izkIr vadksa ds
izklkekU;hdj.k (Normalization) “MAH-MBA/MMS CET 2015” esa
iz;qDr Standardized Equi-percentile method }kjk fd;k tk;sxkA
xxx xxx xxx xxx xxx
9& izR;sd fo"k; esa 50 izfr’kr vad izkIr djus esa foQy jgus
okys vH;FkhZ HkrhZ ds fy, ik= ugha gksaxsA”
36 of 65
“4.The direct recruitment to the posts of Sub Inspector
Civil Police, Platoon Commander, PAC and Fire Officer II
is being conducted on the basis of merit in terms of the
marks obtained by the candidates successful in the online
written examination. In view of the number of
candidates, need has arisen for conducting online written
examination on more than one date in different shifts
with different sets of papers. Question papers of the
different shifts shall be different, and keeping in view the
possibility of them being not similar, the normalization of
the marks obtained by the candidates in different
question papers shall be done by the “MAH-MBA/MMS
CET 2015” Standardized Equi-percentile method.
x x x x x x x x
9. The candidates who fail to obtain 50 percent marks
in each subject shall not be eligible for the recruitment.”
(Translation by the Court)
72.Having due regard to the large number of applications
received, the Selection Board vide notification dated 28
February 2019, informed the candidates that the written
examination would be conducted at 17 districts, on and
between 12 December 2017 to 23 December 2017.
73.Petitioners, herein, applied for the post of Sub-Inspector,
they appeared and participated in the online written
examination conducted by the Selection Board. All of them
scored 50% marks in each subject, accordingly, were invited to
participate in the next stage of selection process i.e. document
verification/physical efficiency test. It is not disputed by the
Selection Board that petitioners successfully qualified the
physical efficiency test. The Selection Board, however, while
declaring the final result (select list) have eliminated the
petitioners on the ground that they failed to obtain 50% of the
37 of 65
Normalized score. Consequently, petitioners were declared
ineligible failing to have obtain the cut of marks prescribed
under Sub-clause (b) of the Rule 15 of the Recruitment Rules.
74.It is well settled that it is the rule-making authority to
prescribe the mode of selection and minimum qualification for
any recruitment. The Courts and tribunals can neither prescribe
the qualifications nor entrench upon the powers of the
executive so long as the rule prescribing the qualification are
not violative of any provisions of the Constitution, statute and
rules. It is, therefore, not open to the respondents to contend
that ‘50% marks’ should be read to include the normalized
percentile score by the Court.
75.In P.U. Joshi and Others vs. Accountant General,
Ahmedabad and others
29
, it was held that Courts or Tribunals
should restrain from directing the government/Selection Boards
to have a particular method of recruitment or eligibility
criterion, it pertains to the field of executive policy and is
within the exclusive discretion and jurisdiction of the State.
"10. ... Questions relating to the constitution, pattern,
nomenclature of posts, cadres, categories, their
creation/abolition, prescription of qualifications and other
conditions of service including ….criteria…..pertain to the
field of Policy is within the exclusive discretion and
jurisdiction of the State, subject, of course, to the
limitations or restrictions envisaged in the Constitution of
India and it is not for the statutory tribunals, at any rate,
to direct the Government to have a particular method of
recruitment or eligibility criteria …….. or impose itself by
substituting its views for that of the State. Similarly, it is
well open and within the competency of the State to
29. (2003) 2 SCC 632
38 of 65
change the rules relating to a service and alter or amend
and vary by addition/substraction the qualifications,
eligibility criteria and other conditions of service ……..
from time to time, as the administrative exigencies may
need or necessitate." (Refer: V.K. Sood vs. Secretary, Civil
Aviation
30
)”
76.Similarly in Chandigarh Administration vs. Usha Kheterpal
Waie and others
31
, the Supreme Court observed thus:
"22. It is now well settled that it is for the rule-making
authority or the appointing authority to prescribe the
mode of selection and minimum qualification for any
recruitment. The courts and tribunals can neither
prescribe the qualifications nor entrench upon the power
of the authority concerned so long as the qualifications
prescribed by the employer is reasonably relevant and has
a rational nexus with the functions and duties attached to
the post and are not violative of any provision of the
Constitution, statute and rules. [See J. Rangaswamy vs.
Govt. of A.P.
32
and P.U. Joshi vs. Accountant General
33
.
77.The Recruitment Rules prescribes the mode of selection.
Rule 8 mandates that a candidate for direct recruitment to the
post of Sub-Inspector must possess a Bachelor degree from any
University established by law in India. The procedure for direct
recruitment to the post of Sub-Inspector is provided under
Rule 15. Sub-clause (b) of Rule 15 provides that the candidates
shall be required to appear in a written examination comprising
of 400 marks. The candidates would have to answer objective
type question in four subjects of 100 marks each. The Rule
30.AIR 1993 SC 2285
31. (2011) 9 SCC 645
32 (1990) 1 SCC 288
33 (2003) 2 SCC 632]
39 of 65
further mandates that a candidate ‘failing to obtain 50% marks’
in each of the subjects shall not be ‘eligible for recruitment’.
78.On a plain reading of Sub-clause (b) of Rule 15, the rule
making authority explicitly and clearly mandated that a
candidate fulfilling the educational qualification would have to
take the written examination, in the event of the candidate
‘failing to obtain 50% marks’ in each subject would not be
‘eligible’ to participate in the subsequent stages of recruitment.
The latter part of Sub-clause (b) confers power upon the
Selection Board to determine: (i) detail syllabus for the
examination; (ii) to conduct written examination on one date in
single shift or in more than one shift or on more than one date
in different shifts with different question papers; (iii) to
determine the procedure for written examination. Sub-clause (c)
of Rule 15 provides that candidates found “successful in
written examination under sub-clause (b)” shall be required to
appear in scrutiny of documents and physical efficiency test.
79.On conjoint reading of Sub-clause (b), in particular, the
first part with sub-clause (c), it is evidently clear that the
Selection Board has not been conferred power to dilute, alter
or prescribe the eligibility of a candidate by substituting the
mandated '50% marks' by the 'normalized score' to qualify the
candidates for subsequent stages of selection. The rule making
authority upon prescribing the eligibility criteria, conferred
limited power upon the Selection Board to determine the
detailed procedure of written examination. The procedure of
selection was prescribed by the rule making authority under
Rule 15, however, the Selection Board was conferred limited
40 of 65
power to determine the procedure of written examination. In
the facts of the instant case, the Selection Board exceeded its
authority and power by applying the normalized score and not
the raw marks to determine the eligibility of the candidates
while preparing the select list. The petitioners, herein, qualified
the written examination by scoring '50% marks' in each subject,
thereafter, were invited by the Selection Board to participate in
the subsequent stages of recruitment i.e. document verification
and physical efficiency test, which is of a qualifying nature, no
marks are allotted. The Selection Board, however, eliminated
the petitioners by applying the normalized score in order to
determine the eligibility qualifying marks in contradiction to
that mandated under the Rule in gross violation of Sub-clause
(b) of Rule 15. The conduct of the Selection Board tantamounts
to re-writing/amending the mandatory rule, thereby, vitiating
the select list.
80.In Mahinder Kumar
7
, the issue before the Supreme Court
was as to whether the High Court was empowered to formulate
its own procedure in the matter of selection for the post of
Madhya Pradesh Judicial Services. The ancillary question was,
as to whether, the merit list could have been drawn solely
based on the written examination marks and interview marks
put together, without adopting the normalization process as
was done by the High Court, which was not mentioned in the
advertisement.
81.Rule 7 of the Madhya Pradesh Uchchtar Nyayik Seva
(Bharti Tatha Seva Sharten) Niyam, 1994, which conferred
7. Mahinder Kumar & others Vs. High Court of Madhya Pradesh, 2013 (11) SCC 87
41 of 65
power upon the High Court to specify from time to time “the
procedure of selection for direct recruitment and promotion”
was considered. In view of the rule, as well as, the
prescription contained in the advertisement the High Court
resolved that based on the evaluation of written examination
papers made by the District Judges, a minimum 35% of marks
in respect of SC/ST candidates and 40% of marks in respect of
general candidates was required in the first and second papers
to qualify for viva voce. Going by the said resolution the
evaluation made by the District Judges was to be kept as the
basis for ascertaining the marks scored by the candidate, both
in reserved category, as well as, in general category in order to
become eligible for attending the interview.
82.As per the second resolution, the Selection Committee for
the purpose of determining merit of the candidates finally, felt
necessary to evaluate the papers of those candidates who were
short listed for the purpose of interview by way of common
evaluation in which process the marks scored by the
candidates in the written examination, would be normalized.
The apparent purposes was, having regard to the different
yardsticks applied by the District Judge evaluators, to make a
further evaluation for the purpose of normalization in order to
finalise the selection. After normalization was done, the marks
awarded by the common evaluators and marks scored in the
viva-voce would be added for the purposes of determination of
merit position. In other words, the normalized marks were not
the basis for determining the eligibility of the candidates to
42 of 65
participate in the viva voce, but were applied for the purpose
of determining the inter-se merit position of the candidates.
83.The Court having regard to the statutory prescription and
the conditions stipulated in the advertisement held that the
High Court was fully empowered on administrative side, to find
a fair method by which the normalization of the marks could
be worked out.
“40. We have, therefore, no hesitation in holding that by
virtue of Rule 7 and para 9(i), (iii), (iv) and (vi), there
was enough prescription empowering the High Court to
follow its own procedure in evaluating the answer sheets
initially by the District Judges and subsequently by
common evaluators, before holding the interview. We,
therefore, reject the said submission made on behalf of
the Petitioners in attacking the procedure followed by the
High Court in the matter of holding the selection….”
84.In the facts of the case at hand, the primary issue is as
to whether the Selection Board was empowered to adopt the
normalization equi-percentile method in scaling the raw marks
obtained by the candidates, and thereafter, applying the
normalized score to determine the eligibility by
substituting/altering the '50% marks' prescribed in Sub-clause
(b) of Rule 15 to non-suit the petitioners from the select list.
85.It is urged by the learned Additional Advocate General
and the learned counsel for the private respondents/selected
candidates that the word ‘marks’ employed in Sub-clause (b)
and (e) of Rule 15 would mean and include the 'normalized
score' and not the raw marks obtained by the candidates in the
written examination held in multiple shifts. The Selection Board
in exercise of its inherent power was within its jurisdiction and
43 of 65
authority to scale (normalize) the raw marks obtained by the
candidates in the written examinations having due regard to
the variance in the level of question papers. A just and fair
selection would justify the approach of the Selection Board so
as to place all the candidates on a level playing field before
determining their eligibility.
86.The learned counsel for the respondent placed heavy
reliance, in particular, on para 4 and para 9 of the notification
dated 28 June 2017 to urge that the Selection Board had
spelled out the rules and method of the game viz. written
examination. The normalization method as per the notification
was to be applied scaling the raw marks. The notification
provides that having due regard to the written examination
being held in multiple shifts normalization method would be
adopted. Para 9 would have to be read with para 4 conjointly
to mean that normalized percentile score would determine the
eligibility criterion and not 50% marks. The submission on face
value appears attractive but on closer examination of the
notification, lacks merit being in gross violation of the statutory
provisions.
87.We have carefully gone through the notification with the
assistance of the learned counsel for the parties and find no
such prescription as is being suggested by the respondents. The
conduct of the Selection Board in inviting all the candidates
who scored 50% raw marks to take the subsequent stage of
selection, clearly reflects that the Selection Board was not clear
whether to apply 50% marks or 50% percentile score for
determining the eligibility of the candidates to qualify for the
44 of 65
subsequent stage of selection. The petitioners herein obtained
50% marks and were invited to participate in the selection
process. Even taking the case of the respondents that the
notification did provide that the normalised percentile score
would determine the eligibility criteria which we do not find on
reading the notification. Then in that event, as held by us, the
Selection Board would exceed its power and authority conferred
under the Recruitment Rules, encroaching upon the domain of
the rule making authority by amending/rewriting the mandatory
prescription of minimum 50% marks. To that extend the
notification would be in teeth of the statutory provision [Rule
15(b)] and would have to be struck down. In our opinion the
notifications of the Selection Board are in consonance with
Recruitment Rules.
88.On reading Sub-clause (b) and (e) of Rule 15 the word
“marks” used therein have different connotation. The phrase
‘failing to obtain 50% marks’ employed by the rule making
authority in Sub-clause (b) prescribes the eligibility criterion
which is mandatory qualification. In other words, a candidate
failing to obtain the prescribed eligibility marks gets excluded
from the recruitment process automatically. Whereas, the
phrase “marks obtained by each candidates” employed in Sub-
clause (e) of Rule 15, would not mean and include the marks
obtained by the candidate for determining his/her eligibility,
but would take within its fold the 'normalized score' for
preparing the select list in order of merit after equalising the
marks obtained by the candidates in Sub-clause (b). Sub-clause
(b) refers to marks prescribed by the rule for eligibility
45 of 65
purpose, whereas, Sub-clause (e) refers to marks/score obtained
upon evaluation upon normalization of the marks referred to in
Sub-clause (b) for the purpose of making the select list in the
order of merit. Such an approach in drawing the select list in
an examination held in multiple shifts would be just and fair.
The Selection Board is within its powers in adopting a method
of evaluation of written examination papers in the backdrop of
multiple shifts/different paper exams to arrive at a process to
prepare the select list in order of merit.
89.The submission of Sri Shashi Nandan, learned senior
counsel that the Selection Board has not been conferred power
to equalize the raw marks obtained by the candidates in the
written examination at any stage of recruitment process, cannot
be accepted. On harmonious interpretation of Sub-clause (b)
read with Sub-clause (e) it is unambiguous and clear that
Selection Board has been vested with the power and authority
to determine the procedure of written examination which
would include the process of evaluation. After evaluation of the
papers, the Selection Board has to prepare the select list in
order of merit. The marks, in a multiple shift examination,
would include the ‘normalized score’ obtained by applying the
method of scaling, be it moderation or normalization, as the
case may be, in order to draw the inter-se merit of the
candidates. In case the submission of the learned Senior
Counsel is accepted it would render Sub-clause (e) and the
power of the Selection Board in determining the procedure of
written examination nugatory. The Selection Board, however, is
not vested to determine the eligibility of a candidate which has
46 of 65
been prescribed by the rule making authority i.e. 50% marks.
Any alteration or substitution of 50% marks would be negation
of Sub-clause (b) of Rule 15.
90.In Sajnay Singh
2
, the Court was of the view that the
expression “marks awarded” or “marks obtained in written
examination” employed in the rule would not only refer to the
actual marks awarded by the examiner. The process of
evaluation does not end on marks being awarded by an
examiner but would imply that the marks awarded by the
examiner can be altered by moderation. Para '20' is extracted:
“20. We cannot accept the contention of the petitioner
that the words "marks awarded" or "marks obtained in
the written papers" refers only to the actual marks
awarded by the examiner. 'Valuation' is a process which
does not end on marks being awarded by an Examiner.
Award of marks by the Examiner is only one stage of the
process of valuation. Moderation when employed by the
examining authority, becomes part of the process of
valuation and the marks awarded on moderation become
the final marks of the candidate. In fact Rule 20(3)
specifically refers to the 'marks finally awarded to each
candidate in the written examination', thereby implying
that the marks awarded by the examiner can be altered
by moderation.”
(emphasis supplied)
91.Once the written examination part is fulfilled, the
Examining Body/ Selection Board has to formulate a procedure
by which the answer papers are to be evaluated in order to
ascertain the marks scored by the respective candidates. The
expression 'evaluation' takes within its fold the manner in
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3) SCC
720
47 of 65
which the evaluation is to be made, to equalize the merits of
the candidates in the written examination. Paragraph '37.5' of
Sanjay Singh
2
is extracted:
“37.5. The expression 'evaluation' would, therefore, take
into its fold the minimum marks to be scored, the
manner in which the evaluation is to be made and in the
event of any requirement, to equalize the merits of the
candidate in the written examination and follow any
appropriate procedure in consonance with law, in order
to ultimately arrive at a fair process by which the
candidate can be called for interview, based on the
evaluation of the marks in the written examination.”
92.The Selection Board, in the instant case, however, erred
in applying the normalized score in violation of the mandatory
rule [Rule 15(b)] to determine the eligibility of a candidate to
take the subsequent round of selection, instead of confining the
normalized score to determine the inter-se merit of the
candidates.
93.The members of the Selection Board or for that matter,
any other Selection Committee, do not have the jurisdiction to
lay down the criteria for selection unless they are authorised
specifically in that regard by the rules made under Article 309.
It is basically the function of the rule making authority to
provide the qualification for selection. In the instant case, the
rule making authority conferred limited power upon the
Selection Board to determine the ‘procedure of written
examination’, which would include evaluation of papers and to
draw the select list in order to merit. The Selection Board has
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3) SCC
720
48 of 65
not been conferred power by the rule making authority to
prescribe the criteria/eligibility (minimum marks) for selection,
rather, the procedure of selection has been codified by the rule
making authority which could not have been breached/altered
by the Selection Board while exercising its limited power of
determining the procedure of written examination.
94.In Umesh Chandra Shukla
23
, the challenge was with
regard to the validity of the candidates relating to the
competitive examination held by the High Court of Delhi for
the purpose of recruiting candidates for the posts in the Delhi
Judicial Service. The Delhi Judicial Service Rules, 1970, inter
alia, mandated that only such candidates would be called for
viva voce who have obtained 50% in each written paper and
60 per cent in the aggregate except in the case of candidates
belonging to the Scheduled Castes/Tribes, in whose case the
qualifying marks would be 40% in each written paper and 50%
in the aggregate.
95.The issue before the Supreme Court was whether it was
open to the High Court to include in the list prepared under
the rules names of the candidates who had not secured the
minimum marks prescribed in the written examination for
being eligible to appear in the viva-voce test. In other words,
the Supreme Court was considering as to whether the High
Court, having regard to the rules, had the power to add two
marks to the marks obtained in each paper by way of
moderation to make a candidate eligible. The Court in para-'13'
held as follows:
23. Umesh Chandra Shukla Vs. Union of India & others reported in 1985 (3) SCC 721
49 of 65
“13. The question for decision is whether such a
resolution can be passed by the High Court which is
entrusted with the duty of conducting the examination.
The High Court had not found any defect in the question
papers or any irregularities in the valuation of the answer
books. It may be that some candidates had obtained high
marks in some papers and by reason of their not
obtaining the required marks in the other papers or 60%
and above in the aggregate they may not have become
qualified for the viva voce test. In our opinion this alone
would not be sufficient to add any marks by way of
moderation. It is relevant to note the mandatory character
of clause (6) in the Appendix to the Rules which says
only such candidates will be called for viva voce who
have obtained 50% marks in each written paper and 60%
in the aggregate..……….. Addition of any marks by way
of moderation to the marks obtained in any written paper
or to the aggregate of the marks in order to make a
candidate eligible to appear in the viva voce test would
indirectly amount to an amendment of clause (6) of the
Appendix.”
(emphasis supplied)
96.Further, the Court held that moderation had an adverse
effect on the candidates who otherwise scored the required
qualifying marks in the examination but were declared
ineligible for viva-voce test.
“The candidates who appear at the examination under
the Delhi Judicial Service Rules acquire a right
immediately after their names are included in the list
prepared under rule 16 of the Rules which limits the
scope of competition and that right cannot be defeated by
enlarging the said list by inclusion of certain other
candidates who were otherwise ineligible, by adding extra
marks by way of moderation.
…. …. ….
Exercise of such power of moderation is likely to create a
feeling of distrust in the process of selection to public
50 of 65
appointments which is intended to be fair and impartial.
It may also result in the violation of the principle of
equality and may lead to arbitrariness. The cases pointed
out by the High Court are no doubt hard cases, but hard
cases cannot be allowed to make bad law. In the
circumstances, we lean in favour of a strict construction
of the Rules and hold that the High Court had no such
power under the Rules. We are of the opinion that the
list prepared by the High Court after adding the
moderation marks is liable to be struck down.” (para 13)
97.The decision was followed in Durgacharan Misra v. State
of Orrisa and others
34
and the limitation of the Selection
Committee was pointed out that it had no jurisdiction to
prescribe the “minimum marks which a candidate had to
secure at the viva-voce test.” The Selection Committee does
not even have the inherent jurisdiction to lay down the norms
for selection nor can such power be assumed by necessary
implication.
98.In Ramachandra lyer and others vs. Union of India and
others
35
, Supreme Court observed that the Selection Board had
no power to add to the required qualification. The relevant
para is extracted:
“By necessary inference, there was no such power in the
ASRB to add to the required qualifications. If such power
is claimed, it has to be explicit and cannot be read by
necessary implication for the obvious reasons that such
deviation from the rules is likely to cause irreparable and
irreversible harm.”
34. 1987 AIR 2267
35. 1984 SCC (2) 141
51 of 65
99.It may be pointed out that rule making function under
Article 309 is legislative and not executive as was laid down by
the Supreme Court in B.S. Yadav and others v. State of
Haryana and others
36
. For this reason also, the Selection
Committee or the Selection Board cannot be held to have
jurisdiction to lay down any standard or basis for selection as
it would amount to legislating a rule of selection.
100.Similarly, in Umesh Chandra Shukla
23
, it was observed
that the Selection Committee does not possess any inherent
power to lay down its own standards in addition to what is
prescribed under the Rules.
101.The precedents cited hereinabove have been noticed and
followed by the Supreme Court in Krushna Chandra Sahu
24
102.In view thereof, it follows that the power to make rules
regulating the conditions of service of persons appointed or
seeking appointment on government posts is available to the
Governor of the State under the Proviso to Article 309 or
under a statute and it is in exercise of this power the
Recruitment Rules, was made. Where the statutory Rules, in a
given case, is not made either by the Parliament or the State
Legislature, or, for that matter, by the Governor of the State, it
would be open to the appropriate Government, the Central
Government under Article 73 and the State Government under
Article 162, to issue executive instructions. Further, if the Rules
have been made but are silent on any subject or point in issue,
the omission can be supplied and the rules can be
36. 1981 AIR 561
23. Umesh Chandra Shukla Vs. Union of India & others reported in 1985 (3) SCC 721
24.Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others reported in AIR 1996 SC 352
52 of 65
supplemented by executive instructions. But where the rules
prescribe the procedure of selection by categorically providing
the qualification and the eligibility criteria then in that event
the examining Selection Board lacks inherent jurisdiction to
entrench upon the eligibility criteria. (See: Sant Ram v. State of
Rajasthan
37
.)
103.We are also fortified in our conclusion while tracing the
evolution of the Rules pertaining to the recruitment of Sub
Inspector. The Recruitment Rules came to be amended on 3
December 2015. The selections have been made pursuant to the
amended Rules. Sub clause (b) of Rule 15 provides that
“candidates failing to obtain 50% marks in each of the subject
shall not be eligible for recruitment”. The same phrase was
employed in Sub-clause (e) of Rule 15 that came to be
amended. In other words, eligibility criteria was not altered or
changed by rule making authority. The only change brought
about by the amendment was that the procedure for written
examination was entrusted upon the Selection Board exclusively
by omitting Appendix-3 which prescribed the procedure of
written examination. We are informed that the superseded Rule
(prior to enactment of Recruitment Rules) governing the
appointment and selection of Sub-Inspector, viz., “The Uttar
Pradesh Sub-Inspector And Inspector (Civil Police) Service
Rules, 2008”, Rule 15(f) provided that the candidate ‘who fails
to obtain minimum 50% marks’ in each subject shall not be
eligible for recruitment. It is, thus, evident that the rule
making authority was fully conscious that the candidates are
required to score minimum marks (50%), failing which, they
37. AIR 1967 SC 1910
53 of 65
shall not be eligible for recruitment. The eligibility criteria was
retained while promulgating Recruitment Rules. The Selection
Board was not conferred the power and jurisdiction by the rule
making authority to alter or amend the eligibility criteria. The
Selection Board by the amended rules was vested with
exclusive, but limited power to determine the procedure of the
written examination, which includes evaluation of papers by
adopting method of scaling to equalise the different levels of
papers in examination held in multiple shifts and, accordingly,
draw the select list. We accordingly find merit in the
contention of the petitioners that Selection Board exceeded its
authority by disqualifying the petitioners.
104.Now coming to the ancillary issue whether the Selection
Board was justified in scaling the raw marks. Whether
percentile and percentage are the same concepts. The scope of
judicial review of the normalisation method adopted by the
Selection Board.
105.Where the number of candidates taking the examinations
are limited, it is to be assumed that there will be uniformity in
the evaluation, but where large number of candidates take the
examination, in different shifts and in different papers, it
therefore, becomes necessary to evaluate the question papers by
evolving a procedure to ensure uniformity in the level of
question papers. The examining bodies have been adopting
different methods, and most examining bodies/Selection Boards
appear to take the view that moderation is the appropriate
method to bring about uniformity in evaluation where several
examiners manually evaluate the answer scripts of descriptive
54 of 65
(conventional) type question papers in regard to same subjects.
Scaling is resorted to where a common merit list has to be
prepared in regard to candidates who have taken examination
in different subjects, in pursuance of an option given to them.
Scaling places the scores from different tests or test forms on
to a common scale. Normalization is adopted to equalize
objective question papers held in different shifts. There are,
thus, different methods of statistical scoring. Standard Score
method, Linear Standard Score method, Normalized Equi-
Percentile method are some of the recognized methods for
scaling.
106.The concept of normalisation of marks was introduced to
equalise the level of difficulty of question paper of government
exams, conducted in various shifts, in different papers. For
example, a student who has appeared in first session or shift of
the written exam might have scored low marks. However, the
same student would have scored more or even higher marks if
he had appeared in any of the latter shifts of the same exam.
To eradicate this discrepancy the exam conducting Selection
Boards have introduced the concept of normalisation of marks
in exams to equalize the different levels of objective question
papers held in multishifts in same subjects, based on common
syllabus.
107.Normalisation of marks, therefore, means increasing
and/or decreasing the marks obtained by students in different
timing sessions (shifts) to a certain number. In statistics, the
term normalization refers to the scaling down of the data set
such that the normalized data falls in the range between 0 and
55 of 65
1. Such normalization techniques help in comparing
corresponding normalized values from two or more different
data sets in a way that it eliminates the effects of the variation
in the scale of the data sets i.e. a data set with large values
can be easily compared with a data set of smaller values. The
normalized score/percentile is obtained by applying a formula.
108.Percentiles, however, should not be confused with
percentage. The latter is used to express fractions of a whole,
while percentiles are the values below which a certain
percentage of the data in a data set is found. In practical
terms, there is a significant difference between the two. The
percentage score reflects how well the student did in the exam
itself, the percentile score reflects how well he did in
comparison to other students. Percentile rank would, therefore,
mean percentage of scores that fall at or below a given score.
Usually written to the nearest whole percent and are divided
into 100 equally sized groups. The lowest score is at the first
percentile and the highest score is at the 99
th
percentile.
109.It is relevant to place on record that none of the
aggrieved candidates have made any allegation of mala fides or
lack of bona fides, as against the Selection Board or its
members or for that matter in the manner in which subsequent
stages of selection were held by the Committee or with regard
to the computation of normalized score arrived at by applying
the Standardized Equi-Percentile method. In the absence of
challenge to the normalization method and the scores obtained
by the Selection Board in scaling the marks of the candidates
scored in written examination, we take it that the normalisation
56 of 65
formula and the normalized percentile score worked out by the
Selection Board is just and fair.
110.Shri Tarun Agrawal, learned counsel for the petitioners on
the strength of hypothetical statistics/data attempted to
persuade the Court to examine whether the normalisation
adopted by the Selection Board would to lead to absurd results.
The learned counsels for the respondents on the other hand
attempted to show on hypothetical data that the method
adopted by the Selection Board was just and fair. On specific
query, they, however, submit that hard (actual) data pertaining
to the written examination has not been relied upon by either
of the parties nor it is available on the record. In absence of
pleadings and hard data to that effect we decline to examine
the methodology of evaluation on hypothetical statistical data.
Academic questions based on hypothesis cannot be gone into to
determine the issue inter se parties.
111.We would, however, examine briefly the precedents where
the Court interfered or declined to interfere with results of
written examination adopting methods to equalise the raw
marks.
112.In Sanjay Singh
2
, the Supreme Court was considering the
validity of the selections held for appointment in the U.P.
Judicial Service on the basis of a competitive examination in
which the Rules prescribed five papers, all of which were
compulsory for all the candidates. The U.P. Public Service
Commission had scaled the marks awarded to the candidates by
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3) SCC
720
57 of 65
following the scaling method. The Court, on examining the
Judicial Service Rules which governed the selection did not
permit scaling down the marks obtained by the candidates. A
further question with regard to the correctness of the adoption
of scaling method to an examination where the papers were
compulsory and common to all the candidates was also
considered. In doing so the Court observed as follows:-
“24.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.”
113.It was furthermore observed:
“25...Scaling process, whereby raw marks in different
subjects are adjusted to a common scale, is a recognized
method of ensuring uniformity inter se among the
candidates who have taken examinations in different
subjects, as, for example, the Civil Services Examination.”
114.The Court came to the conclusion that the U.P. Public
Service Commission had not ensured nor considered the
preconditions of the scaling method and the consequential
58 of 65
effects in the declaration of the results which were found to be
unacceptable. The Supreme Court held that the adoption of the
scaling method in the given facts had resulted in treating
unequals as equal.
115.In Sunil Kumar
10
, the question before the Supreme Court
was whether Sanjay Singh
2
laid down any principle or direction
regarding the methodology that has to be adopted by the
Commission while assessing the answer scripts of the candidates
in a public examination and specially whether any such
principle or direction has been laid down governing public
examinations involving different subjects in which the
candidates are to be tested. Closely connected with the
aforesaid question was the extent of the power of judicial
review to scrutinize the decisions taken by another
constitutional authority i.e. the Public Service Commission in
the facts of the case.
116.The appellants therein had contended that Sanjay Singh
2
categorically held that the system of moderation is applicable
only to cases where the candidates take a common examination
i.e. where there are no optional subjects and all the papers in
which the candidates appear are the same. In a situation where
the subjects are different, according to the appellants, it has
been held in Sanjay Singh
2
that it is the scaling method has to
be applied and in such situations the system of moderation
10 .Sunil Kumar & others Vs. Bihar Public Service Commission & others, 2016 (2) SCC 495
2. Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3)
SCC 720
2. Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3)
SCC 720
2. Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3)
SCC 720
59 of 65
would not be relevant. The Court rejected the contention of the
appellants that in Sanjay Singh
2
there was a declaration of law
of precedent that in an examination where the papers are
common, the system of moderation must be applied and to an
examination when the papers and subjects are different, scaling
is the only available option. Paragraph 19 is extracted:
“19. The entirety 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 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
2.Sanjay Singh and another. Vs. U.P. Public Service Commission, Allahabad and another, 2007 (3) SCC
720
60 of 65
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.”
(emphasis supplied)
117.The Supreme Court further observed that the requirement
of adoption of moderation, scaling or normalization by their
very nature should be left to the expert bodies in the field,
including, Public Service Commission and the scope of judicial
review is limited to instances of arbitrary or mala fide exercise
of power or being against statutory provision.
“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 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
61 of 65
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.”
(emphasis supplied)
118.The Supreme Court declined to interfere with the results
and the decision of the Bihar Public Service Commission in
adopting the scaling method to the examination.
119.It therefore, follows that the appropriate method to bring
about uniformity in evaluation is left to the examining
authorities. The method adopted by the examining
authority/Selection Board is not subject to judicial review until
it is shown that the exercise of the authority was mala fide,
violative of the statutory provision or the method had resulted
in absurd results rendering the entire selection manifestly
arbitrary. In the facts of the instant case no allegation of mala
fide has been made against the Selection Board or its members
or with regard to the procedure of selection. It has not been
shown by either of the parties based on hard statistics that
normalisation had resulted in manifest, arbitrary or fair result.
120.The learned Additional Advocate General finally has
submitted that it is well within the domain of the Selection
Board under Sub-clause (b) of Rule 15 of the Recruitment
Rules, to determine the procedure for written examination. It
cannot be objected by the petitioners after having appeared in
the examination knowing fully well about the procedure of the
62 of 65
written examination notified by the Selection Board on 28 June
2017. In support of his above contention, reliance has been
placed on the Supreme Court judgment in D. Sarojakumari vs.
R. Helen Thilakom and others
38
.
121.In reply to the contention, learned counsels for the
petitioners would urge that when a candidate appears at an
examination without objection and is subsequently found to be
unsuccessful, a challenge to the process is precluded, but in the
facts of the present case, the petitioners are not assailing the
process of selection nor the notification of the Selection Board
prescribing the procedure, but are respectfully praying that the
process of selection mandatorily prescribed under the
Recruitment Rules, be followed and applied strictly. It is
further submitted that there may be no estoppel against the
statute or Rules and if the process of selection is in derogation
of the Rules, the same could have been assailed by the
candidates who have been declared unsuccessful. The
petitioners, herein, qualified the written examination and all
subsequent stages of selection, but have been excluded from
the select list. Reliance has been placed on the Raj Kumar and
others vs. Shakti Raj And others
39
, referring para-16 which
reads thus:-
"16. Yet another circumstance is that the Government
had not taken out the posts from the purview of the
Board, but after the examinations were conducted under
the 1955 Rule and after the results were announced, it
exercised the power under the proviso to para 6 of 1970
notification and the posts were taken out from the
38 . 2017 (9) SCC 478
39.1997 (9) SCC 527
63 of 65
purview thereof. Thereafter the Selection Committee was
constituted for selection of the candidates. The entire
procedure is also obviously illegal. It is true, as
contended by Shri Madhava Reddy, that this Court in
Madan Lal vs. State of J & K [(1995) 3 SCC 486] and
other decisions referred therein had held that a
candidate having taken a chance to appear in an
interview and having remained unsuccessful, cannot turn
round and challenge either the constitution of the
selection Board or the method of Selection as being
illegal; he is estopped to question the correctness of the
selection. But in this case, the Government have
committed glaring illegalities in the procedure to get the
candidates for examination under 1955 Rules & so also
in the method of selection and exercise of the power in
taking out from the purview of the Selection Board and
also conduct of the selection in accordance with the
Rules. Therefore, the principle of estoppel by conduct or
acquiescence has no application to the facts in this case.
Thus, we consider that the procedure offered under the
1955 Rules adopted by the Government or the
Committee as well as the action take by the Government
are not correct in law."
(emphasis supplied)
122. On specific query, learned Additional Advocate General
submits that all the petitioners herein who obtained 50%
minimum marks (qualifying marks) were allowed to
participate in the subsequent stages of selection i.e. physical
standard test, document verification and physical efficiency
test. It is, therefore, urged that the Selection Board would not
be required to undertake any fresh exercise of
selection/recrutiment in preparation of the select list in order
to merit.
64 of 65
123.Having due regard to the facts and circumstances of the
case and the provisions mandated by the Recruitment Rules,
the writ petition is allowed by passing the following orders:
i) the select list dated 28 February, 2019 is set aside and
quashed;
ii) the candidates having failed to obtain 50% marks (raw
marks) in each subject are declared ineligible for
recruitment/selection;
iii) the Selection Board shall prepare the select list in order to
merit on normalized score, derived by Standardized Equi-
Percentile Method;
iv) Selection Board to comply the order within six weeks from
the date of filing of certified copy of this order and the
selected candidates shall be sent for training.
124.No order as to costs.
Order Date: 11.09.2019
Himanshu/Mukesh/Shashi/Atul
(Sunita Agarwal,J.)
(Suneet Kumar,J.)
65 of 65
Legal Notes
Add a Note....