Full Judgment Text
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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.