Full Judgment Text
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CASE NO.:
Appeal (civil) 6172-6222 of 2005
PETITIONER:
K. Channegowda and others
RESPONDENT:
Karnataka Public Service Commission and others.
DATE OF JUDGMENT: 06/10/2005
BENCH:
B.P. Singh & Arun Kumar
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) Nos.11589-11639 of 2003)
WITH
CIVIL APPEAL NO.6313 OF 2005
(Arising out of SLP (C) No. 24322 of 2003)
Dr. K. Rameshwarappa \005 Appellant
Versus
Karnataka Public Service Commission and
another \005 Respondents
AND
CIVIL APPEAL NOS.6223-6312 OF 2005
(Arising out of SLP (C) Nos. 610-699 of 2004}
M. R. Ravi and others \005 Appellants
Versus
Karnataka Public Service Commission and
Others \005 Respondents
B.P. SINGH, J.
Special leave granted in all the matters.
In this batch of appeals the common judgment and order of the High
Court of Karnataka at Bangalore dated October 11, 2002 has been assailed.
The matter relates to the conduct of competitive examination by Karnataka
Public Service Commission for recruitment to the post of Gazetted
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Probationers (Group ’A’ and ’B’ Posts). Some of the unsuccessful
candidates approached Karnataka Administrative Tribunal with a grievance
that the competitive examination conducted by the Karnataka Public Service
Commission was not fair and impartial. The manner in which the
examination was conducted and the evaluation of the answer scripts by the
examiners were suspect. In particular allegations were made about the
favours shown to one K. Rameswarappa, the appellant in Civil Appeal
arising out of SLP ) No. 24322 of 2003 and two of his relatives who had
secured high positions and were ultimately selected.
The Karnataka Administrative Tribunal by its judgment and order
dated February 6, 2002 allowed the applications filed before it, inasmuch as
it found certain irregularities committed in the conduct of the competitive
examination, and in particular favours shown to the aforesaid
Rameswarappa and some of his relatives. The Tribunal ultimately directed
the Karnataka Public Service Commission to get all the answer scripts
evaluated afresh after appointment of fresh examiners in accordance with the
procedure contained in the order. It also gave certain directions in regard to
the evaluation of the answer scripts and the declaration of the result.
The Karnataka Public Service Commission filed writ appeals before
the High Court of Karnataka at Bangalore challenging the findings recorded
by the Administrative Tribunal and the ultimate order passed by it. The
High Court after hearing the parties gave certain directions for the re-
evaluation of some of the answer scripts, though not all. The High Court
was of the view that having regard to the findings recorded by it, it was not
necessary to get all the answer scripts evaluated over again. The judgment
and order of the High Court has been impugned in this batch of appeals.
The appellants in the appeals arising out of SLP ) Nos. 11589 to
11639 of 2003 are the unsuccessful candidates who were not selected for
appointment. They contend that the entire examination should have been
scrapped in view of the findings recorded by the Tribunal and the High
Court.
The appellants in appeals arising out of SLP ) Nos.610-699 of 2004
are the successful candidates who were selected for appointment by the
Karnataka Public Service Commission on the basis of the declared result.
They contend that for no fault of theirs’ the answers scripts are sought to be
re-evaluated, particularly when the High Court was able to identify the
culprits and the beneficiaries of the irregularities committed in the
evaluation and moderation of the answer scripts. They contend that apart
from the persons against whom a clear and categoric finding has been
recorded, there is no need to order fresh evaluation of the answer scripts in
15 optional subjects and also in general studies.
The appellant in the appeal arising out of SLP ) No. 24322 of 2003 is
one Dr. Rameshwarapppa against whom findings have been recorded by the
Karnataka Administrative Tribunal which have been affirmed by the High
Court. He has challenged the findings recorded against him and has prayed
for setting aside the judgments and orders of both the Karnataka
Administrative Tribunal and the High Court.
The facts of the case may be briefly noticed.
On February 4th, 1998 the Government of Karnataka sent requisition
to the Karnataka Public Service Commission for the selection of 415
candidates for appointment to the post of Gazetted Probationers (Group ’A’
and ’B’ posts). Pursuant to the said requisition, the Karnataka Public
Service Commission issued an advertisement on March 9, 1998 inviting
applications. As many as 85598 applications were received in response to
the said advertisement and out of them 79130 applications were found to
have been validly made by eligible candidates. In accordance with the rules
for selection to the said posts, a preliminary examination was held followed
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by the main examination. The preliminary examination was held on August
30, 1998 in which 56228 candidates appeared. Result of the preliminary
examination was declared on November 16, 1998 and on the basis of the
aforesaid result 9857 candidates were found eligible to take the main
examination. The main examination was held between April 9, 1999 and
May 3, 1999. The answer scripts were evaluated between May 17, 1999 and
June 18, 1999. On January 12, 2000 the result was declared and as many as
2397 candidates qualified for the personality test. In the months of July and
August, 2001 the personality test was held and the provisional list of
selected candidates was declared on September 28, 2001.
In February, 2000 eight candidates who had failed in compulsory
papers of Kannada and/or English filed writ petitions before the High Court
alleging serious irregularities in evaluation of the answer scripts. The writ
petition came up before a learned Single Judge of the High Court who by a
reasoned order dated March 21, 2000 referred the aforesaid writ petitions to
the Division Bench.
In the meantime 24 other candidates filed writ petitions before the
High Court. Those writ petitions were also clubbed with writ petitions filed
by eight candidates earlier and another Writ Petition No. 7022 of 2000 filed
by another candidate. Ultimately the Division Bench held that the writ
petitioners may seek remedy before the Karnataka Administrative Tribunal
and that writ petitions were not maintainable. The High Court transferred all
the 33 writ petitions filed in the High Court to the Karnataka Administrative
Tribunal. Nine other petitioners had directly approached the Karnataka
Administrative Tribunal. In this manner 42 matters were heard and disposed
of by the Karnataka Administrative Tribunal vide its judgment and order
dated February 6, 2002.
Aggrieved by the judgment and order of the Karnataka Administrative
Tribunal, the Karnataka Public Service Commission preferred writ petitions
before the High Court of Karnataka at Bangalore being Writ Petition Nos.
12548-12589 of 2002 which have been disposed of by the impugned
common judgment and order.
The Karnataka Administrative Tribunal concluded that the valuation
of the answer scripts could not be regarded as fair. In the facts and
circumstances of the case no distinction could be made between answer
scripts validly valued and those not validly valued. It was, therefore,
necessary that all the answer scripts should be re-evaluated. Accordingly, it
directed the Karnataka Public Services Commission to get all the answer
scripts valued afresh by appointing examiners who are in no way interested
in the candidates taking the examination. The examiners were to be
appointed after verifying their declaration that none of their relatives
specified in the format of the declaration was a candidate. The Commission
was directed to erase all the code numbers and give fresh code numbers to
the answer scripts relating to the compulsory as well as the optional subjects.
It, further, directed that all answer scripts wherein more than 60% marks
were awarded must be valued by a set of two examiners. In case there was a
difference exceeding 5% of the marks in evaluation by the two examiners,
the matter must be referred to the third examiner. It also directed that
Karnataka Public Service Commission shall permit re-evaluation of answer
scripts of all those candidates who seek such re-evaluation within the time to
be specified, and on such payment as may be determined. It further obliged
the Commission to furnish to all candidates marks obtained by them in all
the papers.
The High Court, however, modified the directions of the Tribunal. It
came to the conclusion that in the facts and circumstances of the case it was
not necessary to get all the answer scripts re-evaluated. It directed
moderation/random review by the Head Examiner and Chief Examiner only
in regard to subjects where the same had not been adequately done earlier.
This had to be done in the manner suggested by the Public Service
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Commission in para (b) of its memo dated March 27, 2002 which reads as
follows :-
"\005..on the basis of random review of answer scripts
done in respect of answer scripts evaluated by each
Examiner average variation shall be arrived at.
Wherever the average variation is less than plus or
minus 20, general review of the marks awarded need
not be done. However where the average difference is
plus or minus 20 or more the marks awarded by such
examiner shall be increased or deceased by that
average in respect of each of the answer scripts
evaluated by that Examiner. In case the average
variation is less than plus or minus 20 but variation in
respect of individual answer scripts is plus or minus
20 or more those answer scripts would be subjected to
third valuation."
The entire process of moderation was directed to be done under the
supervision of the Secretary of Karnataka Public Service Commission. It
was left to the discretion of the Secretary of the Karnataka Public Service
Commission to have the moderation done either at a two tier level (Head
Examiner and Chief Examiner) or at only one level. The Secretary of the
Karnataka Public Service Commission was directed to select and prepare a
fresh panel of Head/Chief Examiners for this purpose. The process of
interviews and selection carried out during the pendency of the applications
before the Karnataka Administrative Tribunal was declared to be illegal.
The Commission was further directed to re-evaluate the compulsory papers
(English and/or Kannada) of those candidates who had approached the High
Court or Tribunal for such re-evaluation before the date of judgment. After
re-evaluation and moderation as directed, the Commission shall prepare the
list of candidates to be called for personality test in accordance with the
Rules.
It would thus be seen that whereas the Karnataka Administrative
Tribunal directed that all the papers be evaluated by the examiners afresh,
the High Court confined it to re-evaluation and moderation of some papers,
and that too only in those subjects wherein that was considered necessary,
applying the scaling method. A significant finding recorded by the High
Court is that there was hardly any material to raise any suspicion about the
fairness of the examiners in examining the answer scripts. Some doubts
arose when re-evaluation/moderation was done by the Head Examiner/Chief
Examiner in respect of some of the subjects. The High Court, therefore,
gave directions for a limited re-evaluation and moderation confined to some
subjects only, and did not consider it necessary to order a total re-evaluation
of answer scripts of all subjects, or cancellation of the examination itself.
It will be necessary at this stage to notice the salient findings recorded
by the Karnataka State Administrative Tribunal and the High Court. The
Tribunal after noticing the submissions urged on behalf of the parties
observed that during the course of argument it enquired of the Karnataka
Public Service Commission about its willingness to re-evaluate the answer
scripts of the applicants before it. The senior counsel appearing on behalf of
the Commission submitted that the Commission was not willing to
undertake that exercise. The Tribunal subsequently suggested, after
arguments were concluded, to the Commission that it may produce the
marks list of the top 50 candidates in each category indicating the marks
assigned by the Head Examiner and the Chief Examiner as the case may be,
but the Commission filed a memo declining to produce the information
sought by the Tribunal for administrative reasons and having regard to the
limited scope of judicial review in such matters. It was also explained by
counsel appearing for the Commission that the Secretary of the Commission
had gone for a training to Mussorie for a period of 6 to 8 weeks and that the
keys of the almirahs where the records had been kept were with him, and
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therefore the required information could not be produced readily.
The Tribunal also sought clarification from the Commission about the
allegations made against some of the candidates namely Rameshwarappa
and his relatives. The Commission confirmed the fact that Rameshwarappa
and his relatives were seated in the same hall to take the examination. They
had opted for same optional subjects and their answers were valued by the
same examiner.
In the facts and circumstances of the case, the Tribunal formulated the
following contentions of the Petitioners which required examination by it :
"(i) That they are highly qualified persons having
secured very high professional degrees such as their
chosen fields and in that back ground it is
inconceivable that they should have been failed in
Compulsory papers, the expected standards of which
are not more than SSLC standards.
(ii) That the valuation of the papers by the
examiners are apparently erratic as not to be regarded
as fair to all the candidates as for example, members
of the one family like sister, brother and brother-in-
law securing top ranking in the final examination
indicating thereby manipulation of marks secured by
them, bearing no connection between the marks given
and the quality of answers; that one of the senior
employees of the KPSC whose son had appeared for
the examination had participated in the examination
process including evaluation of the answer scripts
casting a serious doubt as to the fairness in valuation
of the answer scripts.
(iii) That one of the model answers had been
leaked-out prior to the examination affecting the
fairness of the examination process".
Repelling the submission urged on behalf of the Karnataka Public
Service Commission that a candidate cannot seek revaluation of his answer
scripts merely on his own perception of good performance, the Tribunal
observed that the mere fact that a candidate may think that he has performed
extremely well and yet not awarded marks which he rightly deserved, may
not by itself justify the revaluation of the answer scripts. However, in the
light of other allegations of unfairness and arbitrariness, if found to be true,
re-examination of the answer scripts may be justified. Reliance placed by
the Karnataka Public Service Commission on the decision of this Court in
Maharashtra State Board of Secondary and Higher Secondary Education
and another vs. Paritosh Bhupeshkumar Sheth and others : AIR 1984 SC
1543 did not, according to the Tribunal, support the case of the Commission.
That decision was distinguished on the ground that in that case the Rules
specifically prohibited the authorities to entertain a claim of revaluation. In
the instant case it observed that the Rules were silent on this aspect of the
matter and, therefore, in the absence of any express prohibition the
Karnataka Public Service Commission certainly had the power to order fresh
evaluation of answer scripts if it was satisfied that there was evidence of
unfairness and mal practice in the valuation of answer scripts. In the interest
of fairness, the Commission may exercise such authority wherever
necessary.
As regards allegations of unfairness in valuation of answer scripts, the
Tribunal noticed that in the case of Remeshwarappa and his relatives the
answer scripts were first valued by the Examiner and then by the Chief
Examiner who awarded very high marks to them which really enabled them
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to get high positions in the merit list resulting in their ultimate selection.
The Tribunal noticed the marks awarded to Rameshwarappa and his
relatives Nagaraja and Triveni which demonstrated that very high marks
were awarded by the Chief Examiner and in some cases 80% marks were
awarded as against 30% awarded by the Examiner. The Tribunal
commented on the manner in which the Chief Examiner increased the marks
awarded to these candidates. This also disclosed that the model answers
prepared to maintain uniformity in the award of marks was not adhered to,
because in that event there could not be possibility of such a huge difference
in the award of marks by the Examiner and the Chief Examiner. This
reflected on the fairness in the valuation of the answer scripts and
demonstrated that the answer scripts were not valued on the basis of the
model answers prepared as per the accepted standard.
The Tribunal further commented on the refusal of the Karnataka
Public Service Commission to accept a suggestion of the Tribunal that all
the answer scripts of the applicants should be revalued. In fact the
suggestion of the Tribunal that the marks list of the top 50 candidates in each
category be produced showing the marks awarded to them by the Examiners,
Head Examiner and the Chief Examiner was not accepted. The Tribunal did
not find the explanation given by the Commission to be convincing. The
Tribunal went to the extent of holding that the refusal of the Karnataka
Public Service Commission to produce the marks assigned to top 50
candidates gave rise to an adverse inference that if such tabulated statement
of marks was produced it would have gone against the Commission.
The Tribunal also commented on the conduct of some of the officials
who shouldered heavy responsibility in the conduct of the examination.
Apart from the Secretary of the Commission, one Sadyojathaiah, who was
Incharge Secretary for a few months, did not declare that his son was also
taking the examination. In fact his daughter also took the examination but
was unsuccessful. This only showed that the declaration made by the
Examiners/officials were not scrutinized and enquired into with the result
that the wards/relatives of some of the officials closely associated with the
conduct of the examination also participated in the competitive examination.
May be that they did not act unfairly, but what was important was that the
examination must be seemed to have been conducted fairly.
A contention was raised before the Tribunal that the model answers
were known even before the examination was conducted and that such a
model answer relating to the compulsory subject, namely \026 Kannada
language prepared by the Karnataka Public Service Commission was filed in
a batch of applications. The Karnataka Public Service Commission averred
that these model answers were prepared only a couple of days prior to
commencement of the valuation, but it did not deny that the model answer
filed with the applications purporting to be the model answer for the
Kannada language subject was in fact not the model answer prepared by the
Commission. Though the Tribunal did not record a categoric finding of fact
that such a model answer was available to the candidates even before the
conduct of the examination, it commented on the fact that the model answer
was available to a candidate who annexed it with his application which
demonstrated that the Commission was not able to maintain secrecy in such
matters.
The Tribunal also held that the Karnataka Public Service Commission
could not deny revaluation of answer scripts if sought by any candidate who
is aggrieved by the valuation of his answer scripts. To deny a candidate the
right to seek revaluation amounted to denial of fairness to him. Therefore, in
the absence of a specific rule prohibiting re-evaluation, it would be
obligatory on the Karnataka Public Service Commission to grant such re-
evaluation within a specified time after the announcement of the result. It
referred to earlier instances where the Public Service Commission had
permitted re-evaluation of the answer scripts.
On such findings the Tribunal came to the conclusion that the award
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of marks to the candidates did not appear to be fair resulting in the vitiation
of the merit list. But the Tribunal following the principles laid down in
Anamica Mishra and others vs. U.P. Public Service Commission,
Allahabad and others : 1990 (Suppl.) SCC 692 held that the entire
examination need not be set aside in the facts and circumstances of the case.
Fairness could be ensured if the answer scripts were revalued after taking
necessary precautions to ensure fairness. It, therefore, passed an order for
fresh valuation of all the answer scripts laying down guidelines which have
been earlier referred to in this judgment.
We may observe at this stage that the Tribunal after considering the
material on record came to the conclusion that in respect of atleast three
candidates namely, Rameshwarappa, Nagaraja and Triveni who were high
rank holders, the marks awarded by the Chief Examiner was much more
than the marks awarded to them by the examiner. That is how, they
managed to secure high positions in the competitive examination. The
findings of the Tribunal are also borne out by the report of the Sub\026
committee constituted by the Commission to investigate the matter. The
Committee found that serious irregularities were committed by one Prof.
K.S. Shivanna, Chief Examiner when he reviewed the marks awarded to
Rameshwarappa, Nagaraja and Triveni. The said Rameshwarappa was
employed as Deputy Director of Food and Civil Supplies while Nagaraja
was his wife’s brother and Smt. Triveni and Smt. Hemalatha were two
sisters of his wife. The report of the Sub-committee discloses that their
academic record was average. All of them had chosen the same optional
subjects. In General Studies Paper I and II and History Papers I and II all of
them had chosen the very same questions for answering and their answers
were also identical. The Sub-committee found that Prof. Shivanna had been
appointed Chief Examiner to examine answers written in Kannada medium
in the subjects General Studies and History. He had evaluated 127 answer
scripts as Chief Examiner. It was discovered that in respect of the aforesaid
four candidates he had even awarded marks for totally wrong answers. He
later claimed that by oversight such mistakes were committed. He described
as bona fide errors the awarding of more marks than the maximum
prescribed. It was found that six other candidates had been shown such
favourable treatment by Prof. Shivanna, out of whom two were ultimately
selected but the remaining four could not get selected. The evidence
collected by the Sub\026committee established that the aforesaid
Rameshwarappa used to visit the then Secretary of the Commission very
frequently, while Prof. Shivanna was his research guide for the Ph. D
programme. It also appeared from the material collected by the Sub-
committee that after the evaluation of answer scripts, all the three had
undertaken a joint foreign trip. The Sub-committee came to the conclusion
that Sri Monappa the then Secretary of the Commission had parted with the
code numbers of the candidates to Prof. Shivanna, who was willing to oblige
Rameshwarappa and some others. The Sub-committee found that Prof.
Shivanna who was Chief Examiner in respect of answer scripts in Kannada
medium, in the subjects General Studies and History, also picked up answers
given in English medium as in the case of Nagaraja and Triveni. He sought
to explain this by saying that since Prof. Raju Naidu, Chief Examiner of
English medium was away, those papers had been brought to him and he had
accordingly moderated those papers.
We do not wish to go into the details of the findings recorded by the
Sub\026committee because we are informed that a proceeding is pending
against Sri Rameshwarappa. The selection of the alleged favoured
candidates has also been cancelled. Any observation made by us, or finding
recorded in respect of the matter, may prejudice the case of Rameshwarappa
in the pending proceeding, and, therefore, we do not wish to make any
further comment on this aspect of the matter. The findings of the Sub\026
committee have been noticed by us, as also by the High Court, in the context
of the challenge to the validity and fairness of the competitive examination
only for that limited purpose and not with a view to finding the guilt or
otherwise of Sri Rameshwarappa.
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In the writ petitions preferred before the High Court against the order
of the Tribunal, while the selected candidates challenged the order for fresh
moderation in some subjects, the unsuccessful candidates challenged the
fairness of the examination and prayed for cancellation of the examination
itself. The Karnataka Public Service Commission justified its stand before
the Tribunal.
We have earlier noticed that the Tribunal after conclusion of the
hearing of the matter, had suggested to the Commission on November 11,
2001 that it may produce the marks awarded to the top 50 candidates in each
category, by the Head Examiner and the Chief Examiner. The Commission
expressed its inability to give the aforesaid information having regard to the
scope of the proceeding before the Tribunal. It was also stated that since the
Secretary of the Commission was away on training at Mussorie for a period
of six to eight weeks and the keys of the Almirah in which the records were
kept were with him, the information could not be produced immediately.
However, before the High Court the Commission voluntarily produced the
marks obtained by the top 50 candidates in each category, and with
necessary particulars. The Commission also furnished the particulars of
marks obtained by all the candidates who were ultimately selected for the
personality test disclosing the marks awarded to them by the Examiner and
thereafter the Head Examiner or Chief Examiner after moderation. The
High Court directed the Commission to produce the list of candidates in
whose cases the variation in marks was plus or minus 20 or above (out of
300 marks) in a subject and also to furnish the particulars of cases where the
Chief Examiners had done random re-evaluation with particulars of
difference in marks. Accordingly, the Commission had produced necessary
statements as required by the Court. The relevant part of the Memo filed
before the Court is as follows : -
"The Commission has placed before this Hon’ble Court
subjectwise abstract of total number of answer scripts
valued, number of answer scripts moderated by the Head
Examiner and/or Chief Examiner and cases where the
marks awarded in moderation is plus or minus 20 or
more vis-‘-vis the marks awarded by the Examiner. The
total number of cases where the variation is plus or minus
20 or more has been identified as 661. Keeping in mind
anxieties expressed and apprehensions stated during the
hearing of the writ petitions and the suggestions that fell
from the Bench of this Hon’ble of this Hon’ble Court, the
Commission has examined the entire issue in the light of
the scheme laid down by the Commission regarding
valuation of the answer scripts. The endeavour of the
Commission has been to find a solution which would be
in line with the scheme of examination prescribed by the
Commission.
Keeping the above objective in mind and in
deference to the suggestions that emerged during the
hearing of the writ petitions, the Commission is making
the following offer:
(a) Wherever the random review done by the Head
Examiner is less than 10 per cent of the answer scripts
evaluated by any examiner in any subject, the short fall
would be made up examinerwise and subjectwise by
random review of answer scripts to the extent of
shortfall. While doing so, it will be ensured that random
sampling shall not be less than 5 per cent of the top-level
answer scripts.
(b) The Commission has always been of the view that
review referred to at para 3 of the scheme of valuation is
not analogous to scaling technique. It has been
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understood by the Commission as review of marks of
particular answer script taken up for random review by
the Head Examiner. However, during the hearing it has
been expressed that review should be understood as
scaling technique. The Commission has considered the
suggestion and is of the opinion that on the basis of
random review of answer scripts done in respect of
answer scripts evaluated by each examiner average
variation shall be arrived at. Wherever the average
variation is less than plus or minus 20 general review of
the marks awarded need not be done. However, where
the average difference is plus or minus 20 or more, the
marks awarded by such examiner shall be increased or
decreased by that average in respect of each of the
answer scripts evaluated by that examiner. In case the
average variation is less than plus or minus 20, but
variation in respect of individual answer scripts is plus or
minus 20 or above those answer scripts would be
subjected to third valuation.
(c) As a result of random review if in respect of any
candidate the change in marks is too generous or too
adverse to the candidate, the Commission would refer
such paper for third valuation.
The secretary who was holding the post at the time when
central valuation was conducted in respect of
examination in question is no longer with the
Commission. The Commission would ensure that
disinterested staff of the Commission headed by the
Secretary will supervise and monitor the entire process of
review and revaluation that would be undertaken as set
out above".
The High Court has noticed the fact that on March 27, 2002 this
memo had been prepared and circulated to all Counsels appearing in the
matter. However, since the service of notice of the respondents was not
complete and the matter was being heard only for the grant of interim relief
at that stage, the memo was not actually filed and was later filed on July 22,
2002. We have noticed these facts because it was argued before us that this
memo is anti-dated. The observations of the High Court must set at rest this
controversy.
On some aspects of the matter the Tribunal as well as the High Court
have recorded concurrent findings. It has been concurrently found that so
far as Sri Rameshwarappa is concerned, as also his two relatives, with the
assistance of Chief Examiner, Prof. Shivanna and the Secretary of the
Commission, they were shown undue favour and their marks were increased
by Prof. Shivanna to such an extent that they obtained high positions and
were selected for appointment. In doing so, Prof. Shivanna had committed
irregularities. The High Court however has further recorded a finding that
so far as evaluation of the answer papers by the Examiners is concerned no
case of irregularity or unfairness has been established. It is only at the stage
of moderation, and that too the moderation undertaken by Prof. Shivanna,
that there is evidence of irregularity and unfairness confined to the cases of
the three selected candidates, though seven other unsuccessful candidates
had also been given high marks by Prof. Shivanna. It has, however, been
concurrently held that in the facts and circumstances of the case it was not
necessary to cancel the examination. While the Tribunal felt that all the
answer scripts should be valued afresh, the High Court held that it was not
necessary to do so. The High Court was of the view that only those answer
scripts required to be re-evaluated which had been moderated by Prof.
Shivanna as also those answer scripts in various subjects where the requisite
percentage of answer papers as required by the guidelines were not
moderated by the Head Examiner/Chief Examiner. The High Court further
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directed that scaling method should be adopted in re-evaluation so that the
benefit of moderation is not confined to those candidates whose answer
scripts are by chance picked out for moderation, but the benefit is extended
to all candidates who may have similarly suffered or gained on account of
the examiner being strict or liberal in awarding marks.
Having perused the material placed before us we are satisfied that this
is not a case where the examination deserves to be cancelled. We are also
satisfied that the finding recorded by the High Court that there is really no
allegation imputing unfairness in the matter of examination of answer scripts
by the examiners, is justified. The allegations, if any, relate to the stage of
moderation by the Chief Examiners, and in particular confined to the
conduct of Chief Examiner Prof. Shivanna.
The High Court has very meticulously examined the material on
record and it is not necessary for us to undertake that exercise over again.
The High Court had called for and examined the following statements/
extracts :-
"i) statement showing the merit-wise marks of the first 50
candidates category wise (that is GM, Group 1, 2A, 2B,
3A, 3B, SC and ST);
(ii) statement showing the subject-wise marks awarded
by the Examiners, Head examiners and Chief examiners,
where the difference is plus 20 and above (335 answer
scripts);
(iii) statements showing the subject wise marks awarded
by the Examiners, Head Examiners and Chief Examiners,
where the difference is minus 20 and above (in regard to
326 candidates);
(iv) Subject wise abstracts showing the number of
answer scripts moderated by Head Examiners and Chief
Examiners and the number of answer scripts where the
variation on moderation is plus or minus 20 and more;
(v) subject-wise list of Examiners, Head Examiners and
Chief Examiners".
The High Court found that random review of adequate number of
answer scripts had been done in the seven optional subjects (out of thirty)
noticed in paragraph 31 of its judgment. Review disclosed that variation of
marks had not exceeded plus or minus 20 (out of 300 marks). The High
Court, therefore, found that there was no irregularity in review evaluation or
moderation in the aforesaid seven subjects and no interference was,
therefore, called for.
It further found that in the four subjects noticed in paragraph 32 of its
judgment consisting of two papers each, there was adequate random review
of answer scripts by the Chief Examiners and there was no variation beyond
plus or minus 20 marks (out of 300 marks) in some papers, and only a very
few, that too marginal, in other papers. There was, therefore, no need to
interfere with the evaluation in respect of the aforesaid four subjects. In the
optional subject Chemistry also, the material placed on record, did not
justify any interference with the evaluation of answer papers.
However, the High Court found that in the optional subject
Agriculture and Marketing, no Head Examiner has been appointed, and the
Chief Examiner had reviewed only three answer scripts out of 222 in Paper I
and only four out of 279 in Paper II, that is 1% to 2%. Similar was the case
with optional subject Criminology. In regard to the remaining 16 optional
subjects and General Studies the High Court found that the number of
answer scripts were large and the variation exceeding plus or minus 20
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marks were also substantial. The necessary particulars have been noticed by
the High Court in paragraph 34 of its judgment. The High Court has
observed that the moderation in these subjects was restricted only to the
answer scripts which were reviewed, without adopting the scaling technique
of moderation by applying the upward or downward revision of all the
answer scripts evaluated by the respective examiners. Even the random
review was not done to the extent suggested in the guidelines, nor was any
record maintained to show whether moderation was done by the Head
Examiner/Chief Examiner in the manner required by the guidelines.
The High Court further noticed that there were serious irregularities in
the review valuation by one of the Chief Examiners namely, Prof. Shivanna
who had evaluated 127 answer scripts as Chief Examiner in the subject
General Studies and History. The High Court has noticed the findings
recorded by the Sub\026committee appointed by the Commission to investigate
into the matter. The High Court found that glaring irregularities were
committed by Prof. Shivanna in the random review done by him in History
Papers I and II and General Studies Papers I and II and, therefore, there was
need to review the process of moderation even in these subjects.
In view of its findings the High Court set aside the direction of the
Karnataka Administrative Tribunal for a fresh evaluation of all the answer
scripts. The High Court directed that moderation, or random review, will be
undertaken only where such moderation/random review was found to be
inadequate. The subjects in which re-evaluation has been ordered have been
enumerated in paragraph 39(b) of the judgment of the High Court. In so
doing, the Karnataka Public Service Commission has been directed to apply
the scaling method as described in paragraph (b) of its memo dated March
27, 2002. The moderation is required to be done under the supervision of
the Secretary of the Karnataka Public Service Commission, and it is open to
him to have the moderation done at two tier level (i.e. Head Examiner and
Chief Examiner) or at only one level, that is Chief Examiner. A fresh panel
of Head and/or Chief Examiner shall be prepared. The High Court did not
direct moderation/ random review in respect of the subjects where it found
random review to be adequate and there was no conspicuous variation in
marks awarded by the examiner and the Head Examiner. The High Court in
its impugned order has enumerated those subjects/papers in sub-para (c) of
its order.
The High Court further directed to hold fresh interviews and selection
in place of those carried out during the pendency of the applications before
the Karnataka Administrative Tribunal. It further directed the Karnataka
Public Service Commission to re-evaluate the compulsory papers (English
and or Kannada) of those candidates who had approached the High Court
and the Tribunal for such re-evaluation before the date of the Judgment.
The High Court has directed that a fresh list of candidates shall be prepared
and candidates invited for personality test in accordance with Rules.
We may at the outset notice the submission urged on behalf of the
unsuccessful candidates that the entire examination should be cancelled and
a fresh examination be held. We have noticed earlier the findings of the
Tribunal as well as the High Court on this aspect of the matter. It has been
concurrently held by the Tribunal as well as the High Court that it is not
necessary to hold the examination afresh. However, while the Tribunal held
that all the papers should be evaluated afresh, the High Court after a
meticulous examination of the material placed on record has come to the
conclusion that it is not necessary to re-evaluate all the papers. It has upheld
the evaluation of papers in some subjects while it has directed re-evaluation
in some others. The High Court did not consider it necessary to order fresh
evaluation of all the papers by the examiners, because it did not find any
allegation or evidence of partiality or favouritism against the examiners.
Even the Tribunal has not specifically recorded any finding that the
examiners acted in improper or unfair manner. The allegations really are
against the re-evaluation of papers by Head Examiners/Chief Examiners and
in particular against the conduct of Prof. Shivanna, who it is found granted
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abnormally high marks to his favourite candidates so that they may rank
high in the merit list and be ultimately selected. The Tribunal as well as the
High Court have concurrently held that the conduct of Prof. Shivanna was
improper and unfair and we do not find any reason to interfere with their
concurrent finding. However, we do not wish to make any further
observations since we are informed that proceedings are pending against
Prof. Shivanna and necessary action is being taken in this regard. We
further clarify that the finding recorded in these proceedings is only for the
purpose of disposing of these appeals and should not prejudice the case of
the parties in the pending enquiry.
So far as the Tribunal is concerned, it has ordered fresh evaluation by
the examiners, while the High Court has directed re-evaluation only at the
Head Examiners/Chief Examiners level, that is at the stage of moderation/
random review. We find that there is really no justification for fresh
evaluation of all the answer scripts by the examiners, and we concur with the
finding of the High Court.
It appears to us that the Tribunal directed fresh evaluation of all
answer scripts because the suggestion made by the Tribunal for production
of the marks assigned to the top 50 candidates in each category was not
accepted by the Commission. However, before the High Court the relevant
material was produced and the High Court had the advantage of scrutinizing
the material placed before it. Counsel for the successful candidates is,
therefore, right in his submission that if the material asked for had been
produced before the Tribunal, perhaps the Tribunal would not have drawn an
adverse inference and directed a wholesale re-evaluation of all the answer
scripts.
On the question of re-evaluation by Head Examiner/Chief Examiner,
the High Court has placed the subjects into two categories viz; those where
sufficient percentage of answer scripts as required by the Rules had not been
taken up for random review/moderation, and secondly, those where the
random review/moderation is either found to be unfair (as in the case of
Prof. Shivanna), or where the variation of marks awarded by the examiner
and the Chief Examiner/ Head Examiner was plus or minus 20 or more. The
High Court has recorded reasons for directing re-evaluation in only some of
the subjects. In regard to other subjects the High Court has found that
sufficient number of answer scripts were randomly evaluated and
moderated, and further there was no conspicuous variation in the award of
marks by the examiners and the Head Examiners. Obviously, therefore,
there was no need to get such answer scripts re-evaluated. However, where
sufficient number of answer scripts were not re-evaluated by Head
Examiner/Chief Examiner as required by the Rules, the High Court was
certainly justified in directing compliance of the Rules.
Another aspect of the matter is with regard to applying the scaling
method as per the direction of the High Court. The scaling method has been
described earlier in this judgment. The selected candidates have a grievance
against the application of this method. It was submitted that it may not be
proper to apply the scaling method only in respect of subjects where the
answer scripts have to be moderated by Head Examiner/Chief Examiner and
not to other subjects where the High Court has upheld the moderation/
random checking by the Head Examiner/Chief Examiner. We have given
the submission our serious thought. The scaling method is applied only with
a view to maintain a uniform standard in the marking of answer scripts. As
is well known some answer scripts are randomly taken up for evaluation by
Head Examiners/Chief Examiners. It may be that some examiner may be
very liberal and generous in awarding marks whereas some other examiner
may award much less marks for the same quality of answer. Upon
moderation, no doubt the candidate whose answer paper is moderated gets
benefit of moderation, but such benefit is not extended to other candidates
whose answer scripts may have been examined by the same examiner, but
were not randomly selected for re-evaluation by the Head Examiner/Chief
Examiner. It is true that there is bound to be some difference in the marks
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awarded by different examiners in the same subject. But the need for
applying scaling method arises only in cases where the variation in marks
awarded exceeds a certain level. It is, therefore, not necessary that the
scaling method should be applied in all cases. The scaling method will be
applied only where the variation in marks is plus or minus a certain level or
percentage. The High Court in the instant case has directed that scaling
method shall be applied only when it is found that average variation is plus
or minus 20 or more. Wherever the average variation is less than plus or
minus 20, general review of the marks awarded need not be done. We were
told that the scaling method is now being applied in many competitive
examinations held in this country and the purpose of applying the scaling
method is to bring about a certain uniformity of standard in the matter of
award of marks by the examiners. No exception can be taken to the scaling
method in principle.
In fact this Court in U.P. Public Services Commission vs. Subhash
Chandra Dixit and others : AIR 2004 SC 163, has found the scaling method
to be fair since it seeks to eliminate the inconsistency in the marking
standards of the examiners. This Court has observed:-
"There is a vast percentage difference in awarding of
marks between each set of examiners and this was sought
to be minimized 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".
Then remains the question as to whether it will make any difference in
the instant case if the scaling method is not applied to subjects where
valuation and revaluation has been upheld by the High Court. In our view, it
will make no difference because the High Court has not found it necessary to
direct re-evaluation of answer scripts in those subjects where the average
variation was not found to be more than plus or minus 20%. Thus, the
subjects in which the High Court has not directed re-evaluation are those
subjects where in any case the scaling method would not be applicable
because the average variation of marks has been found to be within the
prescribed parameter. We, therefore, uphold the direction of the High Court
to apply the scaling method in re-evaluation of answer scripts pursuant to the
order of the High Court.
No doubt counsel for the successful candidates submitted that it was
not necessary to apply the scaling method as the same purpose can be
achieved by the procedure already prescribed. It was submitted that the
percentage 5 or 10% as the case may be for random evaluation is the
minimum prescribed. There is nothing which prevents the random re-
evaluation of a larger percentage of answer scripts. There was, therefore, no
need to apply the scaling technique. This submission must be rejected
because even if answer scripts more than the percentage prescribed are
reviewed by Head Examiner or Chief Examiner, that will not achieve the
purpose for which the scaling technique is adopted, because the scaling
technique is confined to award of marks by examiners in the same subject
who are either too liberal or too strict in awarding marks with the result that
the average variation is more than plus or minus 20 marks. If the desired
result is to be achieved all the answer papers examined by a particular
examiner will have to be re-evaluated. As between the two options, we find
the scaling method to be more practical and effective.
The counsel for the successful candidates as well as counsel appearing
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on behalf of the Karnataka Public Service Commission submitted that it is
not necessary even to re-evaluate the answer scripts in some of the subjects
as directed by the High Court because the findings of the Sub-committee
appointed by the Karnataka Public Service Commission is clear and
categoric. The Sub-committee which inquired into the irregularities
committed in the conduct of the examination found that the irregularities
were committed by Prof. Shivanna who awarded very high marks as the
Chief Examiner to his favourite candidates namely, Rameshwarappa and the
members of his family. There were 10 cases which were identified for
favoured treatment, out of whom three were selected. In all Shivanna had
moderated only 127 answer papers and, therefore, it was not necessary to re-
evaluate the other answer scripts except those re-evaluated by Prof.
Shivanna as the Chief Examiner. It was also submitted on behalf of the
successful candidates that the guidelines provided that random review or
random sampling should not be less than 5% of the top level answer scripts
and over all random review should not be less than 10% of the answer
scripts evaluated by each examiner. However, according to them, the High
Court has increased the percentage to 20% instead of 5 to 10%.
There is no merit in either of the two submissions. The High Court
has found as a fact that in some subjects random review was not done to the
extent prescribed in the guidelines (5% of top level answer scripts and over
all random review of 10%). No minutes or record were maintained to show
whether moderation was done by the Head Examiners/Chief Examiners in
the manner required by the guidelines. In these circumstances, one cannot
find fault with the direction of the High Court for re-evaluation of answer
scripts in subjects in which moderation/random review was not done in
accordance with the guidelines.
The submission that the guidelines earlier provided only for a random
review to the extent of 5 to 10 % which has now been increased to 20%, is
based on a factually wrong assumption. The High Court in paragraph 35 of
its judgment has noticed that the random review prescribed under the
guidelines was to be done in respect of 5% of top level answer scripts and
10% over all random review. Even the memo filed by the Karnataka Public
Service Commission and accepted by the High Court assured that whenever
random review done by the Head Examiner was less than 10% of the answer
scripts evaluated by any examiner in any subject, the shortfall would be
made up examiner-wise and subject-wise by random review of answer
scripts to the extent of shortfall. While doing so it will be ensured that
random sampling was not be less than 5% of the top level answer scripts.
We have, therefore, no doubt that the direction of the High Court has not
deviated from the guidelines. Moreover, 5% or 10% as the case may be is
the minimum required percentage of random review. It can always be more
than the minimum prescribed.
We shall now notice some of the other submissions advanced before
us. It was argued before us that the key answers had been leaked out. The
High Court has noticed the contention advanced before it and observed that
the same was neither pursued nor established. The facts disclosed that the
model answers were prepared only a few days before the actual
commencement of the valuation. In the instant case, valuation commenced
on May 17, 1999 while the examination was held between April 9, 1999 and
May 3, 1999. There was, therefore, no question of the model answers being
leaked out earlier so as to be available to the examinees on the dates of
examination.
It was also argued before the High Court and faintly submitted before
us that the writ petitioners were students who had a good academic record
and, therefore, it was unbelievable that they would have failed in
compulsory papers English and Kannada which were of SSLC level. It was
explained by the Commission that it is not as if all writ petitioners had failed
in compulsory subjects English and Kannada. Only three had failed in
English and one had failed in Kannada. The other writ petitioners had
passed in the compulsory subjects English and Kannada, but since they had
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not secured high marks over all they were not called for personality test. In
any event, the Karnataka Public Service Commission had agreed to re-
evaluate the compulsory papers of the applicants/petitioners who had already
approached the Tribunal or the High Court. The High Court has accepted
the submission on behalf of the Commission and clarified that the relief in
regard to re-evaluation of compulsory papers should be restricted to those
candidates who have approached the Tribunal or the High Court, and not to
others.
A submission was sought to be urged before us on behalf of the
unsuccessful candidates that even the interview conducted for selection of
candidates was not proper inasmuch as 350 candidates out of 390 were
awarded 195 marks each. Counsel for the successful candidates submitted
that such a contention was not raised either before the High Court or the
Tribunal, and there is no pleading or finding on this aspect of the matter. It
is not necessary for us to examine this question. The High Court has directed
holding of fresh interviews on the basis of marks obtained after re-evaluation
of answer scripts in accordance with the directions of the High Court. Since
fresh interviews will be held, the grievance of the aforesaid petitioners does
not subsist.
Having considered all aspects of the matter, we are satisfied that no
interference by this Court in these appeals is called for. The High Court has
taken care to safeguard the interest of all concerned and to rule out the
possibility of unfairness in the re-evaluation of the answer scripts. The
directions made by the High Court are adequate to deal with the peculiar
facts of this case.
We, therefore, dismiss all the appeals and affirm the judgment and
order of the High Court.