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
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
