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CASE NO.:

Appeal (civil) 8609 of 2003

PETITIONER:

U.P. Public Services Commission

RESPONDENT:

Subhash Chandra Dixit & Ors.

DATE OF JUDGMENT: 05/11/2003

BENCH:

K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NOS. OF 2003

[Arising out of S.L.P.(C) Nos 207, 208, 3758 & 6295 of 2003]

[Arising out of S.L.P.(C) No. 23723 of 2002]

K.G. BALAKRISHNAN, J.

Leave granted.

Three of these appeals have been preferred by the Uttar Pradesh Public

Services Commission (hereinafter called as "U.P.P.S.C.") challenging the

judgments rendered on 3.10.2002 and 11.12.2002 by the Division Bench of the

High Court of Allahabad in Civil Miscellaneous Writ Petitions. The U.P.P.S.C.

conducted various competitive examinations and in these examinations, the

U.P.P.S.C. applied a system of scaling of marks awarded by the examiners who

valued the answer papers. The system of scaling of marks was invoked in the

U.P. Civil Judge (Junior Division) Examination held in August 2000, the result of

which was published on 25.1.2001. Some of the candidates, who could not

secure selection in the examination assailed the examination system adopted by

the U.P.P.S.C. mainly on the ground that the introduction of scaling of marks was

arbitrary and illegal. Their plea was accepted by the Division Bench and by

judgment dated 3.10.2002, the Division Bench set aside the merit list

prepared by the U.P.P.S.C. in respect of the Civil Judge (Jr. Division)

Examination, 2000 and directed that the merit list be prepared afresh on the

basis of actual marks secured by the candidates without applying the formula of

scaling. SLP (Civil) No. 23723 of 2002 is filed against that decision.

Similarly, U.P.P.S.C. held examination for the Provincial Civil Services

(Executive Branch), Main Examination, 2001 and Provincial Civil Services

(Executive Branch) Preliminary Examination, 2002. In both these examinations,

U.P.P.S.C. applied the system of scaling. The results of these two examinations

were also challenged on similar grounds and the Division Bench set aside the

final merit list prepared by the U.P.P.S.C. in respect of these two examinations.

SLP (Civil) No. 207 of 2003 is in respect of Provincial Civil Services (Executive

Branch) Main Examination, 2001 and SLP(Civil) No. 208 of 2003 arises out of the

examination of Provincial Civil Services (Executive Branch), Preliminary

Examination, 2002.

The remaining two appeals arising out of SLP (C) No. 3758 of 2003

and SLP(C) No. 6295 of 2003 have been preferred by candidates aggrieved by

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the aforesaid judgments of the High Court.

At first, we shall consider the SLP (Civil) No. 23723 of 2002 in respect of

Civil Judge (Jr. Division) Examination, 2000. The U.P.P.S.C. advertised for

selection of 147 posts of Civil Judge (Jr. Division) Examination, 2000. The

examination consisted of written tests and viva voce. Total marks for written

examinations were 850. 100 marks were assigned for viva voce. The details

are as follows:-

Subjects Marks

(i) Present day Paper-I 150 marks

(ii) Substantive Law Paper-II 200 marks

(iii) Procedural Law Paper-III 200 marks

(iv) Criminal & Revenue Law Paper-IV 200 marks

Language I & II

(a) English to Hindi & Vice Versa Paper-V 60 marks

(b) Hindi to Urdu & Vice Versa Paper-VI 40 marks

Total 850 marks

4270 candidates appeared for the examination. For each of the subjects

in the written examination, there were around 14 examiners and each of them

evaluated about 300 answer sheets, except in language papers. U.P.P.S.C.

had earlier held similar examination for Civil Judge (Jr. Division) for selection of

Judicial Officers in 1997 and 1999. According to the U.P.P.S.C., there was wide

disparity in awarding marks by the various examiners in respect of the same

subject. The answer sheets were randomised before being given to

examiners. The randomisation was done at three stages, namely, at the stage

of allotment of roll numbers, allotment of centre and at the time of distribution of

answer sheets to the examiners for evaluation. U.P.P.S.C. received

representation from several quarters to adopt a scientific method of evaluation of

marks awarded by different examiners in respect of common papers. It was

noticed that the different examiners adopted different yardsticks to award the

marks to the candidates. Thus, the candidates were left at the whims of the

examiners. The gross disparity between two sets of examiners resulted in

injustice to some of the candidates and therefore a check was required. It was

noticed that the marks awarded by two different sets of examiners required to be

scaled in accordance with certain universally accepted method. U.P.P.S.C.

considered the different facets of scaling system and appointed a three-member

committee to carry out an in-depth study of the scaling system. The members of

this committee consisted of Professors from reputed universities. U.P.P.S.C.

considered the recommendations made by the expert committee and on

7.9.1996 accepted the report of the Committee. U.P.P.S.C. resolved to apply the

formula of scaling and thereafter, it was made applicable to the PCS Preliminary

Examination, 1996 and also in PCS Main Examination held in 1996.

Considering the utility of the scaling system, the U.P.P.S.C. decided in its

meeting on 13.10.1999 to apply the scaling pattern for all the examinations

conducted by them. In the case of Civil Judge (Jr. Division) Examination, 2000,

the answer sheets were randomised in order to avoid duplicity or any possible

mischief. The marks awarded by each examiner were considered and scaled in

accordance with the formula adopted by the U.P.P.S.C. The said formula was

based on opinion of experts on the subject and accordingly the result was

published by the U.P.P.S.C. The merit list published by the U.P.P.S.C. was

challenged by the respondents in SLP (Civil) No. 23723 of 2002 on the ground

that the scaling system adopted by U.P.P.S.C. was confusing, arbitrary and

without any reasonable basis. It was alleged that arbitrary marks were awarded

to certain candidates in the name of scaling system to provide undue favour to

them. It was contended that the U.P.P.S.C. had not disclosed the guidelines and

criteria adopted in implementing the scaling system and, therefore, it was

arbitrary and unjustified. It was also contended that several candidates had been

awarded less than 40% marks without any basis whereas several other

candidates who had secured lesser marks in the written tests were awarded

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more than 60% or 70% marks.

The Division Bench considered the various contentions raised by the

respondents as well as the U.P.P.S.C. and held that the application of scaling

was not justified nor supported by any valid statutory permission. The Division

Bench was of the opinion that where selection was to be made on comparative

merit, the adoption of any such process which had the effect of adding marks to

the actual score of the candidate, was destructive of the system whereas the

objective was to select a small number of best candidates on the basis of their

merit out of thousands who had appeared in the examination.

The Division Bench also held that the U.P.P.S.C. had no power under

Rule 51 of the U.P.P.S.C. (Regulation of Procedure and Conduct of Business)

Act, 1974 to invoke the scaling system. Rule 51 says that the merit list shall be

prepared after adding the marks of interview/personality test with the marks

secured by the candidates in the written examination. The Division Bench was of

the opinion that the expression 'marks obtained by the candidates in the written

examination' meant the actual marks awarded by the examiner.

Shri P.P. Rao, learned Senior Counsel, appeared on behalf of U.P.P.S.C.

in SLP(Civil) No. 23723 of 2002 and Shri Rakesh Dwivedi, Senior Counsel

appeared on behalf of the respondents. Additional Solicitor General,

Mr. R.N. Trivedi appeared on behalf of the appellants in SLP(Civil) No. 207 of

2003 and SLP(Civil) No. 208 of 2003.

Shri Rakesh Dwivedi contended that the system of scaling adopted

by U.P.P.S.C. with respect to the competitive examination of Civil Judge,

[Jr. Division] is unconstitutional as it has been enforced without any

corresponding amendment in the U.P. Nyayik Sewa Niyamavali, 1951 [for short

"Niyamavali 1951"] and the examination for selection of Civil Judge [Jr. Division]

should have been conducted in accordance with the procedure prescribed in

that Niyamavali and any deviation therefrom would be illegal. The counsel

further contended that any of the provisions contained in the U.P. Public Services

Commission (Regulation of Procedure and Conduct of Business) Act 1974,

which are contrary to the provisions of the Niyamavali 1951, cannot be applied

for the selection of Judicial Officers in the State of Uttar Pradesh as the U.P.

Public Services Commission Act, 1974 is not an enactment made in accordance

with Article 234 of the Constitution of India as there was no consultation with the

State Public Services Commission and the High Court. It was further contended

that even if Rule 51 of 1974 Act permitted the U.P.P.S.C. to adopt scaling of

marks, the same should not have been applied in the case of selection of

Judicial Officers.

Shri P.P. Rao, learned Senior Counsel appearing for the U.P. Public

Service Commission contended that Article 320 of the Constitution gives ample

power to the Public Service Commission to conduct the selections of candidates

and such power of the Public Service Commission to conduct the examinations

for appointment to the services of the Union and States is not subject to any of

the provisions contained in the Constitution and that it is the constitutional duty of

the State Public Service Commission to conduct such examinations in a free and

fair manner.

In order to understand the rival contentions raised by the parties in this

case, it is necessary to refer to various provisions in the Constitution as well as

the two enactments, namely, the Niyamavali 1951 and the U.P. Public Services

Commission (Regulation of Procedure and Conduct of Business) Act, 1974

which regulates the conduct and procedure of examinations.

Article 234 of the Constitution reads as under :

"234. Recruitment of persons other than District Judges to the

judicial service. --- Appointments of persons other than District

Judges to the judicial service of a State shall be made by the

Governor of the State in accordance with rules made by him in that

behalf after consultation with the State Public Service Commission

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and with the High Court exercising jurisdiction in relation to such

State."

In accordance with the above Article of the Constitution, Niyamavali 1951

was enacted and in the preamble it is mentioned that in exercise of the power

conferred under Article 234 and the Proviso to Article 309 of the Constitution of

India, the Governor in consultation with the U.P. Public Service Commission and

the High Court of Judicature at Allahabad, makes the rules regulating the

recruitment to posts in, and the condition of service of persons appointed to the

Uttar Pradesh Nyayik Sewa. Part II of the Niyamavali 1951 deals with the

strength of the service. Part III deals with the procedure for recruitment to the

service and Rule 6 thereof says that recruitment to the service shall be made on

the basis of the result of a competitive examination conducted by the

Commission. Rules 10, 11 and 12 of Part IV deal with the eligibility criteria

and academic qualifications. Rule 15 of Part V deals with the procedure for

recruitment. It reads as under :

"15. Competitive examination -- The examination may be

conducted at such time and on such dates as may be notified by

the Commission and shall consist of ---

(a) written examination in such legal and allied subjects,

including procedure, as may be included in the syllabus

prescribed under Rule 18;

(b) an examination to test the knowledge of the canidates in

Hindi and Urdu; and

(c) an interview to assess the all round student career of the

candidates and their personality, address and general

suitability."

Part VI, Rule 19 deals with appointment, probation and confirmation.

Rule 19 reads as follows :

"List of candidates approved by the Commission \026 The Commission

shall prepare a list of candidates who have taken examination for

recruitment to the service in order of their proficiency as disclosed

by the aggregate marks finally awarded to each candidate. If two

or more candidates obtain equal marks in the aggregate, the

Commission, shall arrange them in order of merit on the basis of

their general suitability for the service.

Provided that in making their recommendation, the Commission

shall satisfy themselves that the candidate has obtained such an

aggregate of marks in the written test that he is qualified by his

ability for appointment to the service."

The U.P. Public Service Commission (Regulation of Procedure and

Conduct of Business) Amendment Act, 1976 was passed by the legislature of the

State of Uttar Pradesh and it received the assent of the Governor on May 19,

1976. This Act lays down the general guidelines in respect of the procedure and

conduct of business of the U.P. Public Service Commission. The various

provisions in this Act deal with the method and manner in which the competitive

examinations are to be conducted. Chapter II deals with the composition of the

Commission and as to how the meetings of the Commission are to be arranged

and stipulates that the Chairman and in his absence the senior-most member

present shall preside over the meetings of the Commission. Rule 11 of Chapter

II says that the decisions of the Commission, as far as may be, shall be

unanimous. Chapter III deals with the provisions as to how interview/viva voce

is to be conducted. Chapter IV prescribes as to how the written examinations

are to be conducted by the Commission. Rule 26 says that the Commission

shall prepare a panel of examiners for each subject in which the Commission

holds examinations or may constitute a Committee for the purpose and that

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different committees may be constituted for different subjects and the reports of

the Committee shall be laid before the Commission for approval. The

Commission may make such alterations or additions as it may deem fit in the

panels prepared by the Committee. No officer of the Commission shall be

placed on the panel of examiners and the panels so prepared and/or approved

by the Commission shall be reviewed by it from time to time. The panel of

examiners shall be a secret document and it shall be kept in safe custody by

the secretary under seal and shall be submitted to a Member or the Commission

on requisition. Examiners shall be appointed by the Commission from the panels

made in accordance with the rules. Rule 28 says that the question papers set

by the examiners shall be placed before the Commission to ensure conformity

with the required standard of examination. The commission may moderate the

question papers or constitute a committee to perform the work of moderation on

their behalf. Rule 29 says that the Commission shall conduct examination for

the various posts to be filled by competitive examination and that the

Commission may hold combined competitive examinations for selection to

various posts under the purview of the Commission. Rule 30 provides that the

Commission shall advertise the vacancies for which selections are to be made

and invite applications from eligible candidates. Applications received in

response to advertisement shall be scrutinized by the office in the manner

prescribed by the Commission. Rule 31 says that no candidate shall be

admitted to the examination unless he has duly applied on the prescribed form

and has deposited the prescribed application/examination fee within the

prescribed time. The Commission is not empowered to accept advance

applications from candidates on plain piece of paper and no application received

after the last date fixed for receipt of applications shall be accepted. Rule 32

says that all eligible candidates shall, subject to provisions of the rules, be

admitted to the examination. Rule 33 provides that the Commission shall fix the

place, date/dates and time of examination and the centres, with the prior

approval of the Commission. Rule 34 says that the Secretary shall prepare a list

of the persons suitable to be appointed as invigilators and shall get the same

approved by the Commission. Rules 35 to 52 deal with the detailed procedure

as to how the answer books are to be sent to various examiners and valued by

them. Fake roll numbers shall be allotted to each candidate in each paper

before the answer books are despatched to the examiners for assessment. Time

limit is prescribed for return of the answer sheets after evaluation. The

Secretary shall take steps for tabulation of marks obtained by each candidate as

soon as scrutiny of scripts has been done. The Commission has to make

random checking of the tabulation to ensure the correctness and accuracy of

tabulation as well as of assessment of answer books. It is the responsibility of

the Commission to ensure correct tabulation of marks and correct restoration of

original roll numbers of the candidates. The Commission shall decide the

number of candidates to be called for interview to appear before a board of

boards on any day. On each day after the interview is over and marks are

awarded to each candidate, the mark sheet prepared in duplicate shall be placed

in separate sealed covers and the original will be sent to the Secretary to be kept

under his safe and secret custody.

Rule 51, which is relevant for the purpose reads as follows:

"51. The mark sheets so obtained shall be opened on the last day

of interview and immediately thereafter the marks of

interview/personality test shall be added to the marks obtained by

the candidates in the written examination. Thereafter on the basis

of the totals so obtained, the merit list shall be prepared and

placed before the Commission for final declaration of the result.

Provided that the Commission may, with a view to eliminating

variation in the marks awarded to candidates at any examination or

interview, adopt a method, device or formula which they consider

proper for the purpose."

The contention of the learned counsel for the U.P. Public Services

Commission is that the Proviso to Section 51 gives ample power to the

Commission to adopt a scaling system to find out the most suitable candidates

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for selection and the marks awarded to the candidates could be varied by

adopting such a system, whereas the contention of the respondents' counsel is

that Rule 19 of Niyamavali 1951 expressly says that the Commission shall

prepare the list of candidates in the order of their proficiency as disclosed by the

aggregate marks finally awarded and it was argued that the marks finally

awarded means the marks assigned by various examiners to each of the

candidates and it does not mean the marks assigned to the candidates after the

scaling system is applied.

The question, therefore, that arises for consideration is whether the U.P.

Public Service Commission can adopt the scaling system by invoking the power

conferred under Rule 51 of the 1976 Amendment Act in view of Rule 19

contained in Niyamavali 1951. Of course, Niyamavali 1951 was made by the

Governor in consultation with the U.P. Public Services Commission and the

High Court of Judicature at Allahabad by virtue of the powers conferred by Article

234 of the Constitution. Whereas the provisions of the 1976 Act are general

guidelines for the U.P. Public Services Commission, it is not an enactment made

in consultation with the High Court. Nevertheless, the provisions of 1976 Act are

applicable for the purpose of conducting examination for recruitment of Judicial

Officers in the State of Uttar Pradesh. The expression 'aggregate marks' used

in Rule 19 of the Niyamavali 1951 can only be construed as the final marks

awarded after the scaling system is applied. Certainly the Proviso to Rule 51 of

1976 Act gives ample power to the Commission to adopt any method, device or

formula to eliminate any variation in the marks awarded to the candidates. The

various provisions contained in 1974 Act deal with the method and manner in

which the examinations are to be conducted. The Niyamavali 1951 deals with

only general provisions regulating recruitment to the posts and the conditions

of service. Niyamavali 1951 does not deal with the method and manner in which

the examinations are to be conducted. Various steps and procedures have to

be adopted in completing the recruitment for which detailed procedure has been

laid down. This procedure is not part of the Niyamavali 1951.

We do not think that the Proviso to Rule 51 is in any way in conflict with

Rule 19 of Niyamavali 1951. The aggregate marks can only be considered to

mean as the total marks finally obtained by the candidate after the complete

valuation process is over. The dictionary meaning of 'aggregate' is thus: (i) a

whole formed by combining several disparate elements; (ii) the total score of a

player or team in a fixture comprising more than one game or round; (iii) formed

or calculated by the combination of many separate units or items.

The contention of the respondents' counsel is that Niyamavali 1951 is a

complete Code in itself and the selection process shall only be done in

accordance with the provisions contained therein. This plea cannot be accepted

as the Niyamavali 1951 only gives the special rules concerning Subordinate

Judicial Service in the State of Uttar Pradesh whereas the U.P. Public Service

Commission (Regulation of Procedure & Conduct of Business) Amendment Act,

1976 gives guidelines for any recruitment to be made by U.P.P.S.C. All these

provisions are applicable to a recruitment made to Judicial Service also.

Learned counsel for the respondents made reference to three decisions of

this Court and contended for the position that if the recruitment is made in

contravention of the rules framed under Article 234 of the Constitution, the same

shall be void. Umesh Chandra Shukla vs. Union of India & Ors. (1985) 3

SCC 721 is a decision concerning the recruitment to the post of Subordinate

Judges in Delhi Judicial Service. There, a competitive examination was held

and 27 candidates qualified to be eligible for viva voce test. A list was published

by the High Court and the Full Court approved the list of the 27 qualified

candidates. As per the rules, only such candidates would be called for viva

voce who had obtained 50 per cent marks in each of the written papers and 60

per cent in the aggregate, excepting the candidates belonging to Scheduled

Castes and Scheduled Tribes in whose case the marks prescribed were 40 per

cent in each of the written papers and 50 per cent in the aggregate. The

Selection Committee called for viva voce only such candidates who had

qualified written test as provided in the appendix. The Selection Committee

noticed that some of the candidates who had otherwise secured very high marks,

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had to be kept out of the zone of consideration for final selection by reason of

their having secured one or two marks below the aggregate or the qualifying

marks prescribed for the particular paper. So the Selection Committee decided

that moderation of two marks in each paper to every candidate shall be done.

In view of the decision of the Selection Committee, instead of 27 candidates, 31

candidates were called for interview. This was challenged by some of the

candidates and this Court struck down the selection and held that the list

prepared by the committee after moderation of marks is liable to be struck down.

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 be an amendment of

clause (6) of the Appendix to the Delhi Judicial Service Rules, 1970 which is of

mandatory nature. Such amendment to the rules can be made under Article

234 only by the Lt. Governor after consulting the High Court in that regard.

In the above decision, minimum marks were prescribed for viva voce.

Apparently, the candidates who were later included in the list by the selection

committee had not secured the minimum marks to be qualified for viva voce.

The selection as such was done contrary to the rules of recruitment. This

decision has no application to the case in hand. There is no case that the

selection to the posts of Civil Judge (Jr. Division) was held in contravention of

any of the rules made under Article 234 of the Constitution. As regards the

appendix, the Niyamavali 1951 gives the various subjects and the qualifying

marks for each subject. There is no case that these rules have been violated.

As already noticed, rule 19 of the Niyamavali 1951 also is in no way violated in

the present selection process.

Another decision relied upon by the respondents' counsel is Durgacharan

Misra vs. State of Orissa & Ors. (1987) 4 SCC 646. The Orissa Judicial

Service Rules did not prescribe the minimum qualifying marks to be secured at

the viva voce test for selection of Munsifs. As per the Rules, the Commission

shall add the marks of the viva voce test to the marks in the written examination

and then the merit list is to be prepared on the basis of the aggregate marks

secured by the candidates. The list so prepared is to be forwarded to the State

Government. The Commission had no power to exclude the names of any

candidates from the selection list merely because he has secured less marks at

the viva voce test. Contrary to these Rules, the Commission prescribed the

minimum marks for viva voce test and prepared the merit list. This Court held

that the Rules have been framed under the Proviso to Article 309 read with

Article 234 of the Constitution in consultation with the High Court and the

appointments of persons to the Judicial Service of the State shall be made in

accordance with these Rules and the Commission shall select the candidates in

accordance with these rules and it cannot prescribe additional requirements

either as to eligibility or as to suitability and the decision of the Commission

prescribing the minimum marks to be secured at the viva voce test was held to

be illegal and without authority. This decision has no application to the facts of

the present case. In that case, the selection was made against the Rules

framed by the Governor under Article 309 read with Article 234 of the

Constitution. Here, no such rules have been violated and as already noticed,

there was no violation of Rule 19 of the Niyamavali 1951.

Reference was also made to the decision of this Court in State of Bihar

& Anr. Vs. Bal Mukund Sah & Ors. (2000) 4 SCC 640. The Bihar State

Legislature passed an enactment providing reservation to the extent of 50 per

cent for Scheduled Castes, Scheduled Tribes and OBCs in the Judicial Service.

This enactment was passed under Article 309 of the Constitution treating the

Judicial Service as part of the State Service. Majmudar, J., speaking for the

majority of the Constitution Bench, observed that 'Judicial Service' only

earmarks the Members of that service and their appointment is to be made under

the rules made under Article 309 read with Articles 233 and 234 of the

Constitution and that any scheme of reservation foisted on the High Court

without consultation with it directly results in truncating its power of playing a vital

role in the recruitment of eligible candidates to fill up the vacancies and hence

such appointments of reserved posts would remain totally ultra vires of the

scheme of the Constitution. This decision also is of no assistance to the

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respondents.

It is important to note that under Article 320 of the Constitution, the Union

and the State Public Service Commission has been conferred with ample power

to conduct examinations for appointment to the services of the Union and to the

services of the State. Of course, the power conferred on the Public Service

Commission shall not be used arbitrarily. Similarly, powers of superintendence,

direction and control of the preparation of the electoral rolls, for, and the conduct

of, all elections to Parliament and to the Legislature of every State have been

vested with the Election Commission. While considering the parameters of the

powers of the Election Commission, this Court in Mohinder Singh Gill & Anr.

vs. The Chief Election Commissioner, New Delhi & Ors. 1978(2) SCR 272

observed as under:

"Even so, situations may arise which enacted law has not provided

for. Legislators are not prophets but pragmatists. So it is that the

Constitution has made comprehensive provision in Article 324 to

take care of surprise situations. That power itself has to be

exercised, not mindlessly nor mala fide, nor arbitrarily nor with

partiality but in keeping with the guidelines of the rule of law and not

stultifying the Presidential notification nor existing legislation.

\005\005\005\005\005\005\005\005. Article 324, in our view, operates in areas left

unoccupied by legislation and the words 'superintendence, direction

and control' as well as 'conduct of all elections' are the broadest

terms. Myriad maybes, too mystic to be precisely presaged, may

call for prompt action to reach the goal of free and fair election."

The above observation made in the context of Article 324 would equally

apply to Article 320 when it comes to the question of power of the Public Service

Commission. The question, therefore, to be considered is whether the

U.P.P.S.C. has exercised its powers arbitrarily and whether adoption of scaling

system was with ulterior motives to give undue preference to some candidates.

The U.P.P.S.C. in its Special Leave Petition as well as the rejoinder

affidavit filed before us has stated in detail as to how the scaling system was

applied and the circumstances which necessitated the adoption of such a

formula. At the outset we must say that the scaling system, which was adopted

by the U.P.P.S.C. was not similar to the scaling system adopted by the Union

Public Service Commission. The system adopted by U.P.S.C. was challenged

by certain candidates in a writ petition before the High Court of Gujarat. The

Division Bench of the Gujarat High Court considered the question in detail in

Kamlesh Haribhai Goradia vs. Union of India & Anr. (1987) (1) GLR 157 and

held that the process of moderation was necessary to find out the merit of the

candidates inter se and the marks cannot be awarded till such uniformity is

achieved in the matter of assessment of the performance of the candidates at the

examination. It, therefore, cannot be said that there is any deviation so that the

Commission would not have any authority or power to moderate the valuation of

the performance of the candidates at the written examination.

In the instant case also, the challenge of the respondents was that the

system of scaling was unreasonable and arbitrary and thus violative of Articles

14 and 16 of the Constitution.

As already noticed, the Proviso to Rule 51 of the UPPSC (Regulation of

Procedure and Conduct of Business) Amendment Act, 1976 gives power to the

Commission to eliminate variation in the marks awarded to the candidates and to

adopt any method, device or formula considered appropriate for that purpose.

The system of scaling was intended to remove the disparity in evaluation. In

the case of Judicial Service examination, more than four thousand candidates

appeared. The answer papers were evaluated by 14 examiners. Some

examiners were liberal in awarding marks whereas some others were strict in

awarding marks. The details given along with the Special Leave Petition show

the extent of difference in marks awarded by the examiners. Table 1 on page 47

in SLP(C) No. 3758 of 2002 shows as follows:

Table-1

Subject \026 Present day Maximum Marks \026 150

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Examiner

no.

No. of

Scripts

Examined

Mean

marks of

the

examiner

Standard

deviation

of the

marks

allotted

Minimum

marks

Maximum

marks

After

Scaling

Mean

marks of

the scaled

score

After

Scaling

Standard

Deviation

of the

scaled

score

1

2

3

4

5

6

7

8

1

300

68.50

17.23

10

102

75.00

14.98

2

300

45.91

16.02

0

92

75.01

14.99

3

300

39.39

14.12

2

76

74.98

14.99

4

600

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35.07

21.64

0

105

74.99

15.00

5

300

52.16

20.66

0

112

75.00

15.03

6

300

53.55

13.84

7

94

74.97

14.99

7

300

66.17

27.15

8

134

75.00

15.01

8

300

70.09

13.65

0

97

75.04

14.98

9

300

35.94

10.74

9

77

74.96

14.99

10

300

81.74

15.95

25

125

75.02

15.01

11

300

77.45

15.68

26

125

74.99

15.01

12

300

49.98

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12

14.43

11

92

75.03

15.00

13

300

41.16

17.72

3

99

74.98

15.00

14

111

47.82

24.25

4

118

74.99

14.92

There is a vast percentage difference in awarding marks between each

set of examiners and this was sought to be minimised by applying the scaling

formula. If scaling method had not been used, only those candidates whose

answer sheets were examined by liberal examiners alone would get selected and

the candidates whose answer sheets were examined by strict examiners would

be completely excluded, though the standard of their answers may be to some

extent similar. The scaling system was adopted with a view to eliminate the

inconsistency in the marking standards of the examiners. The counsel for the

respondents could not demonstrate that the adoption of scaling system has in

any way caused injustice to any meritorious candidate. If any candidate had

secured higher marks in the written examination, even by applying the scaling

formula, he would still be benefited.

The Division Bench of the High Court observed that the process of scaling

was done examiner-wise only and the scaling formula did not take into

consideration the average of Mean of all the candidates in one particular paper

but took Mean of only that group of candidates which has been examined by one

single examiner. The counsel for the U.P.P.S.C. submitted that the observation

made by the High Court is incorrect. The scaling formula was adopted to

remove the disparity in the evaluation of 14 examiners who participated in the

evaluation of answer sheets and the details have also been furnished as to how

the scaling formula was adopted and applied. Therefore, we do not think that

the observation of the Division Bench that the Commission did not take care of

varying standards which may have been applied by different examiners but has

sought to reduce the variation of the marks awarded by the same examiner to

different candidates whose answer sheets had been examined, is correct. The

Division Bench was of the view that as a result of scaling, the marks of the

candidates who had secured zero marks were enhanced to 18 and this was

illegal and thus affected the selection process. This finding is to be understood

to mean as to how the scaling system was applied. 18 marks were given

notionally to a candidate who secured zero marks so as to indicate the variation

in marks secured by the candidates and to fix the Mean marks.

In that view of the matter, we do not think that the application of scaling

formula to the examinations in question was either arbitrary or illegal. The

selection of the candidates was done in a better way. Moreover, this formula

was adopted by the U.P.P.S.C. after an expert study and in such matters, the

Court cannot sit in judgment and interfere with the same unless it is proved that it

was an arbitrary and unreasonable exercise of power and the selection itself

was done contrary to the rules. Ultimately, the agency conducting the

examination has to consider as to which method should be preferred and

adopted having regard to the myriad situations that may arise before them.

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The U.P.P.S.C. has applied the scaling formula and prepared the merit

list of various candidates for the three examinations, namely, the Provincial Civil

Services (Executive Branch), Main Examination, 2001; Provincial Civil Services

(Executive Branch) Preliminary Examination, 2002; and the U.P. Civil Judge

(Jr. Division) Examination.

The Division Bench of the High Court was not justified in interfering with

the merit list prepared by the Commission. Therefore, we set aside the

judgment of the High Court and direct that the merit list prepared by the

Commission shall prevail in the case of all the three examinations referred to

above. The appeals are accordingly allowed. Parties to bear their own

costs.