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Tuesday, October 20, 2015

To revert, in the instant case, we have noticed that the contempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also noticed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a conscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh (supra), we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court (dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011) or the decision of this Court in Sanjay Singh (supra). Also, the absence of any plea of mala fide and the uniform application of the principles adopted by the Commission by its resolution dated 15th January, 2013 would lead us to the conclusion that the present would not be an appropriate case for exercise of the power of judicial review. The absence of reasons in the aforesaid resolution, on which much stress has been laid, by itself, cannot justify such interference when the decision, on scrutiny, does not disclose any gross or palpable unreasonableness.On the aforesaid conclusions that we have reached we have to dismiss the appeals. We, therefore, do not consider it necessary to go into the question as to whether it was necessary for the appellants to implead the selected candidates as party respondents to the present proceedings, an issue on which elaborate arguments have been advanced and several precedents have been cited at the bar. For the same reasons the weighty arguments advanced by both sides on the power of the Court to mould the relief in a given case will have to await consideration in a more appropriate case.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NOS.8606-8610 OF 2015
    [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.8157-8161 OF 2014]

SUNIL KUMAR & ORS.ETC. ETC.              ...APPELLANTS

                            VERSUS

THE BIHAR PUBLIC SERVICE
COMMISSION & ORS.ETC.ETC.              ...RESPONDENTS

                                    WITH
                        CIVIL APPEAL NO.8611 OF 2015
      [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.11652 OF 2014]
                                    WITH
                        CIVIL APPEAL NO. 8612 OF 2015
      [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NOS.17816 OF 2014]


                               J U D G M E N T

RANJAN GOGOI, J.


1.    Leave granted.

2.    Applications for Impleadment/ Intervention are allowed.

3.    The refusal of the High Court to interfere  with  the  result  of  the
53rd to 55th Combined (Mains) Competitive Examinations,  2011  held  by  the
Bihar  Public  Service  Commission  (hereinafter   referred   to   as   “the
Commission”) in May-June, 2012 is the subject matter  of  challenge  in  the
present appeals.

4.    The principal basis on  which  interference  of  the  High  Court  was
sought is that in finalizing the results of the Examination  the  Commission
had moderated the marks awarded by the examiners  who  had  scrutinized  the
answer-sheets of the candidates instead  of  scaling  down  the  said  marks
which process was required to be undergone in view  of  the  fact  that  the
examinations,  so  far  as  the  optional  papers  are  concerned,  were  in
different subjects.  It is contended that the course  adopted  was  contrary
to the earlier order of the High  Court dated 26th August, 2011 passed in  a
proceeding registered and numbered  as  C.W.J.C.  No.3892  of  2011  besides
being contrary to the law laid down  by  this  Court  in  Sanjay  Singh  and
Another  Vs. U.P. Public Service Commission, Allahabad and Another[1].

5.    To appreciate the first contention advanced the operative part of  the
order dated 26th August, 2011 passed by the High Court in the  earlier  writ
petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow:
“16.        In the result, the writ petition is allowed. Respondent  Nos.  2
and 3 would be well-advised to frame Rules, may  be  after  supplanting  the
existing Rules  with  respect  to  conduct  of  examinations,  incorporating
therein the system of moderation, as well as the system of  scaling  of  raw
marks.  The Commission shall  draw  guidelines  from  the  judgment  of  the
Supreme Court in Sanjay Singh Vs. U.P.PSC (supra), as well as the  Rules  of
the Union Public Service Commission, and other Public  Service  Commissions,
etc. This Court will be pleased if the entire process is completed within  a
period of six months from today.  Till then, the  judgment  of  the  Supreme
Court in Sanjay Singh (supra), will guide the  affairs  of  the  Commission,
with respect to all the examinations where the candidate has the  choice  of
optional subjects, in so far as these two concepts are concerned.”


6.    It is contended that the method adopted i.e. moderation  is  in  clear
breach of above directions issued by the High Court  in  its  earlier  order
which is also between the same parties.  No  deviation,  therefrom,  by  the
Public Service Commission was permissible.


7.    Insofar as the decision in Sanjay Singh (supra) is  concerned,  it  is
urged that this Court had clearly  and  categorically  held  the  system  of
moderation is applicable only to cases where the candidates  take  a  common
examination i.e. where there are no optional subjects and all the papers  in
which the candidates appear are the same. In a situation where the  subjects
are different, according to the learned counsel, it has been held in  Sanjay
Singh (supra) that it is the scaling  method which  has  to be   upheld  and
in such situations the system of moderation would not be relevant.   As  the
Combined Civil Services Examination held by the  Public  Service  Commission
involved  taking   of   examination   by   the   candidates   in   different
subjects/papers, the results declared are vitiated  as  the  same  has  been
finalized by following the moderation method.  This, in short, is  the  plea
advanced on behalf of the appellants.

8.    In reply, it is urged on behalf of the Commission that the  format  of
the Civil Services  Examination  is  covered  by  the  Bihar  Civil  Service
(Executive Branch)  and the Bihar Junior Civil Service (Recruitment)  Rules,
1951.  Appendix  'D'  thereto  lays  down  the  syllabus  for  the  combined
competitive examination.  It is urged that apart from  4  (four)  compulsory
papers, the optional papers are divided  into  four  categories/groups  i.e.
Groups 'A', 'B', 'C' and 'D'. While Group 'A' deals with  Literature,  Group
'B' deals broadly with Humanities subjects whereas Group 'C' deals with  Law
and Public Administration; Group 'D'  deals  with  Science  papers/subjects.
Under the Rules, apart from the compulsory papers, a candidate has  to  take
three optional papers out of which not more than two papers can be from  any
one single group.  It is pointed out that the above position  must  be  kept
in mind while scrutinizing the action taken  by  the  Commission  after  the
High Court had passed the order dated 26th August, 2011 in C.W.J.C.  No.3892
of 2011. It is urged that after the said order was rendered  the  Commission
had sought information from the Union Public Service Commission as  well  as
from  certain   State  Public  Service  Commissions   like   Karnataka   and
Maharashtra.  The entire issue including the information received  from  the
Union Public Service Commission and the State  Public  Service  Commissions,
as referred  to  above,  was  discussed  in  detail  in  a  meeting  of  the
Commission held on 15th January, 2013 and a resolution was adopted that  for
evaluation of the answer-sheets of the Combined Competitive  Examination  so
as to achieve uniformity in the results, the following  procedure  would  be
adopted.
|“(i)   |The Chief Examiner acts as a          |
|       |coordinator and guide for the         |
|       |Examiners working under him and is    |
|       |also responsible for objectivity and  |
|       |uniformity in evaluation done by      |
|       |different Examiners.                  |
|(ii)   |Before the start of evaluation of any |
|       |subject/ paper, the Chief Examiner/   |
|       |Examiners shall hold a in-depth,      |
|       |detailed and minute discussion with   |
|       |the Examiners with regard to all      |
|       |questions of the question paper and   |
|       |with a purpose of having uniformity in|
|       |evaluation, a clear-cut standard of   |
|       |evaluation shall be explained with    |
|       |regard to through and prescribed      |
|       |answer of each question and process of|
|       |marking.                              |
|(iii)  |The Chief Examiner shall must examine |
|       |all answer-books getting marks of more|
|       |than 60% (sixty percent) and below 30%|
|       |(thirty percent).  At least 15% of    |
|       |evaluated answer-books shall be       |
|       |examined by him.                      |
|8.    After due consideration of above facts, |
|it is the opinion of the Commission that the  |
|uniformity in evaluation has been ensured by  |
|adopting the method of moderation in the      |
|evaluation of answer-books of different       |
|subjects/papers of 53rd to 55th Combined Joint|
|(Main) Competitive Examinations. Therefore,   |
|further actions be taken for publication of   |
|result of the said examinations.”             |


9.    It may be also pointed out  in  this  regard  that  the  gist  of  the
information received from the Union Public Service Commission and the  State
Public Service Commissions have been recorded in the said  resolution  which
is, inter alia, to the effect that neither the Commission nor the  Karnataka
or Maharashtra Public Service Commissions had adopted or adopts  the  system
of scaling.

10.   Insofar as the order of the High Court  dated  26th  August,  2011  in
C.W.J.C. NO.3892 of 2011 is concerned, it is pointed out  that  with  regard
to non-implementation of the said directions a contempt petition  was  filed
before the High Court which was  dismissed  by  order  dated  16th  October,
2012.  It is urged that on a cumulative consideration of the format  of  the
examination; the practice followed by the Union  Public  Service  Commission
and different State Public Service Commissions and other relevant facts  the
Bihar Public Service Commission,  by  its  resolution  dated  15th  January,
2013, had taken a conscious decision details of which  have  been  extracted
above.  The Commission also specifically denies that this  Court  in  Sanjay
Singh (supra) had laid down any principle of law to the  effect  that  in  a
public examination involving different subjects the scaling  method  has  to
be necessarily adopted to bring uniformity in the results.   It  is  pointed
out that this  Court  had  merely  observed  that  scaling  is  one  of  the
available methods which could be applied in such situations i.e.  where  the
examination is in different subjects.   It  is  also  pointed  out  that  in
Sanjay Singh (supra) the difficulties and  preconditions  necessary  in  the
practical application of  the  principle  of  scaling  down  had  also  been
noticed.  On the basis of the said facts, it is submitted  that  there  will
be no scope for  this  Court  to  understand  that  any  binding  principle,
direction or guidelines has been laid down in Sanjay Singh (supra) so as  to
bind the Commission to any specific course  of  action  while  conducting  a
public examination, the format of which prescribes different subjects.

11.   It is further contended on behalf of  the  Commission  that  being  an
autonomous body the Commission would be authorized  and  competent  to  take
its  independent  decision,  of  course,  having  due  regard  to   judicial
directions and pronouncements and so long  such  decisions  are  taken  bona
fide and are not arbitrary the scope of judicial review  to  scrutinize  the
decisions of the Commission would be circumscribed.  In this  regard  it  is
also pointed out that, admittedly, it is  not the case of the  appellants  –
writ petitioners  that   any  mala  fide   is  attributable  to  the  Public
Service Commission in the conduct of examination and the declaration of  the
results.

12.   Having considered the rival submissions advanced before us, we are  of
the view that the question that calls for an answer in the present  case  is
whether this Court in Sanjay Singh (supra) had laid down  any  principle  or
direction  regarding  the  methodology  that  has  to  be  adopted  by   the
Commission while assessing the answer-scripts of the candidates in a  public
examination and specifically whether any such  principle  or  direction  has
been laid down governing public examinations  involving  different  subjects
in which the candidates are  to  be  tested.   Closely  connected  with  the
aforesaid question is  the  extent  of  the  power  of  judicial  review  to
scrutinize the decisions taken by another constitutional authority i.e.  the
Public Service Commission in the facts of the present case.

13.   Before adverting to the aforesaid issue we may  briefly  indicate  our
views with regard to the order of the High Court dated 26th August, 2011  in
CWJC No. 3892 of 20911 on the basis of which the action  of  the  Commission
is sought to  be  faulted.  Reading  the  operative  directions,  reproduced
hereinabove, we fail to find any direction of the  High  Court  which  would
bind  the  Commission  to  any  particular  course  of  action.   There   is
sufficient discernible flexibility in the said order  leaving  it  open  for
the  Commission  to  modulate  its  action  as  the  facts  surrounding  the
particular examination(s) that is involved may require.

14.   We have read and considered the judgment in Sanjay Singh (supra).   In
the said case, this Court was considering the  validity  of  the  selections
held for appointment in  the  U.P.  Judicial  Service  on  the  basis  of  a
competitive examination in which the Rules prescribed five (05)  papers  all
of which were compulsory for all the candidates.  There is no  dispute  that
the U.P. Public Service Commission in the aforesaid  case  had  scaled  down
the marks awarded to the candidates by following the scaling  method.   This
Court, after holding that the Judicial  Service  Rules  which  governed  the
selection  did  not  permit  the  scaled  down  marks  to  be   taken   into
consideration, went into the further question of   the  correctness  of  the
adoption  of  scaling  method  to  an  examination  where  the  papers  were
compulsory and common to all the candidates.  In doing so, it  was  observed
as follows:

“The moderation procedure referred to in the earlier para  will  solve  only
the problem of examiner variability, where  the  examiners  are   many,  but
valuation of answer-scripts is in respect of a single  subject.   Moderation
is no answer where the problem is to find inter  se  merit  across   several
subjects,  that  is,  where  candidates  take   examination   in   different
subjects. To solve the problem of inter se merit across different  subjects,
 statistical experts have  evolved  a  method  known  as  scaling,  that  is
creation  of scaled score. Scaling places the scores  from  different  tests
or test forms  on  to  a  common  scale.  There  are  different  methods  of
statistical scoring.  Standard score method, linear standard  score  method,
normalized equipercentile method are some  of  the  recognized  methods  for
scaling.” (Para 24)

      It was furthermore observed:
“Scaling  process, whereby raw marks in different subjects are  adjusted  to
a common  scale, is a recognized method  of  ensuring  uniformity  inter  se
among the  candidates who have taken  examinations  in  different  subjects,
as, for  example, the Civil Services Examination.” (Para 25)


15.   After holding as above, this Court, on due  consideration  of  several
published works  on  the  subject,  took  note  of  the  preconditions,  the
existence or fulfillment of which, alone, could ensure an acceptable  result
if the scaling method is to be adopted. As in Sanjay Singh (supra) the  U.P.
Public Service  Commission  had  not  ensured  the  existence  of  the  said
preconditions the consequential effects in the  declaration  of  the  result
were found to be unacceptable. It was repeatedly pointed out by  this  Court
(Paras 36 and 37) that the adoption of the scaling method  had  resulted  in
treating unequals as equals.    Thereafter in Para 45  this  Court  held  as
follows :
“45.        We may now summarize the position regarding scaling thus :

(i)   Only certain situations warrant adoption of scaling techniques.

(ii)  There are number of methods of statistical scaling, some  simple   and
some complex. Each method or system has its merits and  demerits and can  be
adopted only under certain conditions or  making certain assumptions.

(iii) Scaling will be useful and  effective  only  if  the  distribution  of
marks  in  the  batch  of  answer  scripts  sent   to   each   examiner   is
approximately the same as the distribution of marks in the batch  of  answer
scripts sent to every other examiner.

(iv)  In the linear standard method, there is no guarantee that  the   range
of scores at various levels will yield candidates of  comparative ability.

(v)   Any scaling method should be under continuous review  and   evaluation
and improvement, if it is to be a reliable tool in the  selection process.

(vi)  Scaling may, to a limited extent, be successful in  eliminating    the
general variation which  exists  from  examiner  to  examiner,   but  not  a
solution to solve examiner variability arising from the  “hawk-dove”  effect
(strict/ liberal valuation).”


16.         Moreover, in para 46, this Court  observed  that  the  materials
placed before it did not disclose that the Commission  or  any  Expert  Body
had kept the above factors in mind for deciding to introduce the  system  of
scaling.  In fact,  in  the  said  paragraph  this  Court  had  observed  as
follows:
“We have already demonstrated the anomalies/ absurdities arising   from  the
scaling system used. The  Commission  will  have  to  identify  a   suitable
system of evaluation, if  necessary  by  appointing  another  Committee   of
Experts. Till such new system is in place, the  Commission  may  follow  the
moderation system set out in para 23 above with appropriate  modifications.”
(Para 46)

17.   In Sanjay Singh (supra) an earlier decision of  this  Court  approving
the scaling method i.e. U.P. Public Service Commission Vs.  Subhash  Chandra
Dixit[2]  to a similar examination was also noticed.   In  paragraph  48  of
the judgment in Sanjay Singh (supra) it was held  that  the  scaling  system
adopted in Subhash Chandra Dixit (supra) received this Court's  approval  as
the same was adopted by the Commission after an  indepth  expert  study  and
that the approval of the scaling method by this  Court  in  Subhash  Chandra
Dixit (supra) has to be confined to the facts of that case.

18.   Finally, in paragraph 51 of the report in  Sanjay  Singh  (supra)  the
Court took note of the submission made on behalf of the Commission  that  it
is not committed to any particular system and “will  adopt  a  different  or
better system if the present system is found to be defective”.
19.   In Sanjay Singh (supra) the Court was considering the validity of  the
declaration of the results  of  the  examination  conducted  by  the  Public
Service Commission under the U.P. Judicial Service Rules by adoption of  the
scaling method. This, according to this Court, ought not to have  been  done
inasmuch as the scaling system is more  appropriate  to  an  examination  in
which the candidates are required to write the papers in different  subjects
whereas in the examination in  question  all  the  papers  were  common  and
compulsory. To come to the aforesaid conclusion, this Court had  necessarily
to analyze the detailed parameters inherent in the scaling method  and  then
to reach its conclusions with regard to the impact of the  adoption  of  the
method in the examination in  question  before  recording  the  consequences
that had resulted on application of the  scaling  method.   The  details  in
this regard have already been noticed. (Paras 45 and 46)

20. The entire of the discussion and conclusions  in  Sanjay  Singh  (supra)
was with regard to the question of the suitability of the scaling system  to
an examination where the question papers were compulsory and common  to  all
candidates. The deficiencies and  shortcomings  of  the  scaling  method  as
pointed out and extracted above were in the above context.  But  did  Sanjay
Singh (supra) lay down any binding and inflexible requirement  of  law  with
regard to adoption of  the  scaling  method  to  an  examination  where  the
candidates are tested in different subjects as in the  present  examination?
Having regard to the context in  which  the  conclusions  were  reached  and
opinions were expressed by the Court it is difficult  to  understand  as  to
how this Court in Sanjay Singh (supra) could  be  understood  to  have  laid
down any binding principle of law or  directions  or  even  guidelines  with
regard to holding of examinations; evaluation of papers and  declaration  of
results by the Commission.  What was held, in our view, was that scaling  is
a method which was generally unsuitable to  be  adopted  for  evaluation  of
answer papers of subjects common to all candidates and that the  application
of  the  said  method  to  the  examination  in  question  had  resulted  in
unacceptable results. Sanjay Singh (supra) did not decide that  to  such  an
examination i.e. where the papers are common the system of  moderation  must
be applied and to an examination where the  papers/subjects  are  different,
scaling  is  the  only  available  option.   We  are  unable  to  find   any
declaration of law or precedent or principle in Sanjay Singh (supra) to  the
above effect as has been canvassed before us on behalf  of  the  appellants.
The decision, therefore, has to be understood to be confined  to  the  facts
of the case, rendered upon a consideration of  the  relevant  Service  Rules
prescribing a particular syllabus.

21.   We cannot understand  the  law  to  be  imposing  the  requirement  of
adoption of moderation to a particular kind of examination  and  scaling  to
others.  Both are, at best, opinions, exercise of which requires an  indepth
consideration of questions that are more suitable for  the  experts  in  the
field.   Holding  of  public  examinations   involving   wide   and   varied
subjects/disciplines is a complex task which defies an instant  solution  by
adoption of any singular process or by a strait jacket  formula.   Not  only
examiner variations and variation in award of marks  in  different  subjects
are issues to be answered, there are several other questions that  also  may
require to be dealt with.  Variation in the strictness of the questions  set
in a multi-disciplinary examination format is one such fine issue  that  was
coincidentally noticed in Sanjay Singh (supra).  A  conscious  choice  of  a
discipline or a subject by a candidate at the  time  of  his  entry  to  the
University  thereby  restricting  his  choice  of   papers   in   a   public
examination; the standards of inter subject evaluation of answer papers  and
issuance of appropriate directions to evaluators in different  subjects  are
all relevant areas of  consideration.   All  such  questions  and,  may  be,
several others not identified herein are required to  be  considered,  which
questions, by their very nature should be left to the expert bodies  in  the
field, including, the  Public  Service  Commissions.   The  fact  that  such
bodies including the Commissions have erred or have acted  in  less  than  a
responsible manner in the past cannot be a reason for  a  free  exercise  of
the judicial power which by its very nature will have to  be  understood  to
be, normally, limited to instances of  arbitrary  or  malafide  exercise  of
power.

22.   To revert, in the instant case, we  have  noticed  that  the  contempt
proceedings against the Public Service Commission  for  violation  of  order
dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011  had  failed.   We  have
also noticed that the Public Service Commission made all attempts to  gather
relevant information from the Union  Public  Service  Commission  and  other
State Public Service Commissions to find out the practice  followed  in  the
other States.  The information received was fully discussed in the light  of
the particulars of the examination in question and  thereafter  a  conscious
decision was taken by the resolution dated 15th January,  2013,  details  of
which have been already extracted.  In the light of the above and  what  has
been found to be the true ratio of the decision in Sanjay Singh (supra),  we
cannot hold that in the present case the action taken by  the  Bihar  Public
Service Commission deviates either from the directions  of  the  High  Court
(dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011) or  the  decision  of
this Court in Sanjay Singh (supra).  Also, the absence of any plea  of  mala
fide  and  the  uniform  application  of  the  principles  adopted  by   the
Commission by its resolution dated 15th January, 2013 would lead us  to  the
conclusion that the present would not be an appropriate  case  for  exercise
of the power of judicial review.  The absence of reasons  in  the  aforesaid
resolution, on which much stress has been laid, by  itself,  cannot  justify
such interference when the decision, on  scrutiny,  does  not  disclose  any
gross or palpable unreasonableness.

23.   On the aforesaid conclusions that we have reached we have  to  dismiss
the appeals. We, therefore, do not consider it  necessary  to  go  into  the
question as to whether it was necessary for the appellants  to  implead  the
selected candidates as party respondents  to  the  present  proceedings,  an
issue  on  which  elaborate  arguments  have  been  advanced   and   several
precedents have been cited at the bar.  For the  same  reasons  the  weighty
arguments advanced by both sides on the power of  the  Court  to  mould  the
relief in  a  given  case  will  have  to  await  consideration  in  a  more
appropriate case.
24.    Consequently  and  in  the  light  of  the  above,  the  appeals  are
dismissed, however, without any order as to cost.   All interim  orders  are
vacated.

                                        .................................,J.
(RANJAN GOGOI)


                                          ..........…....................,J.
                                                    (N.V. RAMANA)

NEW DELHI
OCTOBER 14, 2015.
-----------------------
[1]    (2007) 3 SCC 720
[2]    (2003) 12 SCC 701

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