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TMI Blog2007 (1) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 30.6.2004 and 6046 candidates were declared qualified to appear for the "U.P. Civil Judge (Junior Division) Examination (Main), 2003" which was of 'descriptive' (conventional) type. The Main examination consisted of five papers (each carrying 200 marks) - General Knowledge, Language, Law I, II and III - and was held between 5th and 7th October, 2004. The number of candidates who took the said examination was 5748. 3. The answer scripts relating to each subject were distributed to several examiners for valuation, as it was not possible to get the large number evaluated by a single examiner. The number of examiners, to whom the answer-scripts were distributed for valuation, were as follows : General Knowledge 18, Language 14, Law-I 11, Law-II 10, and Law-III 14. The marks assigned by the examiners were subjected to 'statistical scaling' and the results of written examination based on such scaled marks, were declared on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005 and 26.4.2005. After such interview, the Commission declared the final results of the examination on 1.5.2005 based on the aggregate of 'scaled marks' in the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g method adopted by the Commission in the examination conducted in 2000. It is contended that the prayers in these petitions under Article 32, in effect, seek setting aside or review of the decision in S. C. Dixit, and that is impermissible. Reliance is placed on the Constitution Bench decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [2002 (4) SCC 388], to contend that a writ petition under Article 32 would not lie to challenge any judgment of this Court or that of a High Court, as superior courts are not 'State' within the meaning of Article 12 and their judgments cannot be termed as violative of fundamental rights. It is also pointed out that Review Petition (Civil) No. 162/2004 and Curative Petition No.43/2004 filed in respect of S. C. Dixit (supra) were rejected on 04.2.2004 and 6.10.2004 respectively. 6. In regard to merits, the Commission contended that the 'statistical scaling' method adopted in regard to Civil Judge (Junior Division) Examination is legal, scientific and sound and its policy to apply statistical scaling to marks of written examination, was based on experts' opinion as also the experience gained in conducting several examinations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here. 9. In regard to decisions of civil courts in suits governed by Civil Procedure Code or appeals therefrom, the term 'judgment' refers to the grounds of a decree or order, 'decree' refers to the formal expression of an adjudication in a suit and 'order' refers to formal expression of any decision of a civil court which is not a decree. In regard to the decisions of High Court and Supreme Court in writ jurisdiction, the term 'judgment' is normally used to refer to the 'judgment and order', that is the grounds for the decision and the formal expression of the decision. The petitioners do not seek to upset the 'order' part of the judgment in S. C. Dixit (supra) which decided the validity of UP Civil Judge (Junior Division), Examination, 2000, held under the UP Nyayik Sewa Niyamawali 1951. The grievance of the petitioners is in regard to the UP Civil Judge (Junior Division) Examination, 2003, held under the UP Judicial Service Rules 2001. They, however, contend that the ratio decidendi of the decision in S.C. Dixit upholding the Commission's system of scaling of marks in written examination, requires reconsideration. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that the issue raised in the later petition requires consideration and in that context the earlier decision requires re-examination, the court can certainly proceed to examine the matter (or refer the matter to a larger Bench, if the earlier decision is not of a smaller Bench). When the issue is re-examined and a view is taken different from the one taken earlier, a new ratio is laid down. When the ratio decidendi of the earlier decision undergoes such change, the final order of the earlier decision as applicable to the parties to the earlier decision, is in no way altered or disturbed. Therefore, the contention that a writ petition under Article 32 is barred or not maintainable with reference to an issue which is the subject-matter of an earlier decision, is rejected. Re : Question (ii) : 11. Article 234 of the Constitution requires appointments to the Judicial Service of a State (other than District Judges) to be made by the Governor of the State in accordance with the Rules made by him in that behalf, after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. The UP Judicial Service Rules, 2001 (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both". 12. Sub-Rule (1) of Rule 20 of the Judicial Service Rules requires the Commission to prepare the result of the written examination and thereafter, invite such number of candidates, who in the opinion of the commission have secured minimum marks as may be fixed. Sub-Rule (2) provides for participation of a sitting Judge in the interview of candidates. Sub-rule (3) provides that the Commission shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregates of marks finally awarded to each candidate in the written examination and the interview. The proviso thereto provides that if two or more candidates obtain equal marks in the aggregate, the name of the candidate who is elder in age shall be placed higher and where two or more candidates of equal age obtain equal marks in the aggregate, the name of the candidate who has obtained higher marks in the written examination shall be placed higher. Rule 21 provides that the Governor shall on receipt of the list of candidates submitted by the Commission under Rule 20(3) make appointment on the posts of Civil Judge (Junior Division) in the order in which their names are given in the list p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the answer books are dispatched to the examiners for assessment. Rule 38 provides that the number of answer books to be sent to each examiner shall be fixed by the Commission. Rule 44 requires the Secretary of the Commission to take steps for tabulation of marks obtained by each candidate as soon as the answer-scripts are received after valuation, after scrutiny of scripts, removal of discrepancies and corrections. Rule 45 provides for random checking of the tabulation to ensure correctness and accuracy of tabulation. Rule 47 provides that the original roll numbers of candidates shall thereafter be restored to the answer-scripts and for issue of interview letters. Rule 49 authorizes the Commission to decide the number of candidates to be called for interview to appear before a Board on any day. Rule 50 provides that the interview marks awarded shall be kept in safe custody. Rule 51 provides that mark-sheets 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, and thereafter on the basis of the total so obtained, the merit list shall be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and valuation of answer-scripts and award of the final marks and declaration of the results. Therefore, it is for the Commission to regulate the manner in which it will conduct the examination and value the answer scripts, subject, however, to the provisions of the Judicial Service Rules. If the Commission has made Rules to regulate the procedure and conduct of the examination, they will naturally apply to any examination conducted by it for recruitment to any service, including the judicial service. But where the Judicial Service Rules make a specific provision in regard to any aspect of examination, such provision will prevail, and the provision of PSC Procedure Rules, to the extent it is inconsistent with the Judicial Service Rules, will be inapplicable. Further, if both the Rules have made provision in regard to a particular matter, the PSC Procedure Rules will yield to the Judicial Service Rules. 18. The manner in which the list of candidates as per merit should be prepared is provided both in the Judicial Service Rules and the PSC Procedure Rules. Relevant portion of Rule 20(3) and Note (i) of Appendix-II of the Judicial Service Rules and Rule 51 of the PSC Procedure Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or rule making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read as they are without the addition of the proviso to Rule 51 of PSC Procedure Rules. If so, what can be taken into account for preparing final list of selected candidates, are 'marks finally awarded to a candidate' in the written examination and the interview. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be 'the final marks awarded to the candidate'. Where the Commission is of the view that there is 'examiner variability' in the marks (due to strict or liberal assessment of answer scripts) or improper assessment on account of erratic or careless marking by an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res the Commission to call for interview such number of candidates, who in its opinion have secured the minimum marks fixed by it. Because of application of scaling system by the Commission, it has not been possible for the Commission to fix such minimum marks either for individual subjects or for the aggregate. In the absence of minimum marks, several candidates who secured less than 30% in a subject have been selected. We note below by way of illustration, the particulars of some candidates who have been selected in spite of securing less than 20% in a subject : S. No. Roll No. Subject Actual Marks (in %) Scaled Marks Rank in Selection 1. 2. 3. 4. 5. 6. 7. 8. 9. 012610 032373 002454 008097 017808 010139 012721 002831 004998 Language Language Language Language Law-I Language Law-I Language Language 8% 8% 11% 13% 13% 14% 15% 16% 17% Thus scaling system adopted by the Commission, contravenes Rule 20(1) also. Re : Question (iii) : 23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer- scripts. Where the number of candidates taking the examination are limited and only one examiner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation. (ii) To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity. 24. In the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that a mark of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate to an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;mark' is different. Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. 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. 26. The Union Public Service Commission ('UPSC' for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in civil service preliminary examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;assumptions' or 'parameters' for applying the formula : (i) Assumed Mean will be taken as Half of the maximum marks of the group/subject. (ii) Assumed S.D. will be taken as one-fifth of the assumed mean. (iii) If scaled score is less than zero after scaling, then candidates will be allotted zero marks in the said group/subject. (iv) If scaled score after scaling is more than maximum marks, then candidate will be allotted maximum marks in the said group/subject. 29. Eversince then, the Commission has been following the statistical scaling. According to the Commission, the scaling method is rational, scientific and reasonable and would lead to assessment of inter se merit of the candidates in a just and proper manner. The use of the said method was reviewed by an Expert Committee on 31.7.2000 and it was reiterated that the formula and method presently used for scaling can be continued to be used in future also and there was no need to change the same. Thus the scaling is continued. 30. We may at this stage refer to the condition to be fulfilled, for scaling to be effective. For this purpose, we are referring to passages from the Authors/Experts relied on by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... core has some pre-determined mean and standard deviations. ..the choice of the mean and standard deviations is purely arbitrary. Each has its own advantages and disadvantages and useful for specific purpose only. It may be emphasized here that both the standard scores and linear standard scores retain the shape of the original distribution of raw marks. Therefore, if the original distribution is 'normally' distributed, then any type of Linear Standard Scores will also be 'normally' distributed. Taking the Normal Curve as the model, various points in other scales are plotted. It should be, however, noted that the kind of relationship shown in Figure -2 between normal curve vis-`-vis the other scores are valid only if the raw score distribution can be assumed to approximately normally distributed. (emphasis supplied) 30.4) The Kothari Report, 1976 ('Policy & Selection Methods' published by UPSC) while referring to scaling in regard to papers in different subjects, by using appropriate statistical techniques as a recognized procedure for improving the reliability of examination as a tool for selection, however cautions that the method should be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first examiner and low for the second examiner, having regard to the range of distribution of marks. Consequently the scaled marks of a candidate calculated on a formula heavily relying on standard deviation, would be based on the cumulative standard deviation of all the candidates in his pool rather than the strictness or liberality of the examiner. Therefore, standard deviation has only a bearing on ascertaining the range of capabilities of the candidates in a given examination and in no way eliminates the anomalies arising out of the strictness or liberality of the examiner. We may demonstrate the fact that the scaled marks vary with reference to the extent of standard deviation (and has nothing to do with the issue of strictness or liberality of the examiner), from the following examples : Actual Marks Average (Mean) Marks Strict Examiner No. I Strict Examiner No. II Standard Deviation Scaled Marks Standard Deviation Scaled Marks Actual Marks Average (Mean) Marks Liberal Examiner No. I Liberal Examiner No. II Standard Deviation Scaled Marks Standard Deviation Scaled Marks The reason given for introducing scaling is to cure the disparity on account of strictness or liberality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xaminers. Subject : Language Examiner No. Raw Marks of the candidate Scaled Marks (100)+(0-66.58 x20) = 44 23.73 100+(0-55.29 x20) = 47 20.91 100+(0-74.88 x20) = 0 (-5 to be taken as zero) 14.20 100+(0-44.48 x20) = 58 20.06 100+(0-61.52 x20) = 50 24.8 100+(0-52.86 x20) = 67 31.75 100+(0-43.11 x 20) = 66 25.50 100+(0-54.77 x20) = 36 17.02 But unfortunately in the same subject, candidates who secured 32 to 30 marks, assessed by Examiner No.10, got their marks reduced to 31 to 28 on scaling. (Mean being 80.93 and SD being 14.16). The devastating effect of awarding such high scaled marks, that too ranging from 36 to 67, to those who have secured '0' need not be stressed. In fact UPSC has clarified that whenever they follow scaling procedure, no scaling is applied to '0' marks. But the Commission had not applied its mind to this aspect when applying 'scaling'. II. Equalization of marks of persons who secured very high marks. The scaling has equalized the different high end marks of candidates, where the mean marks is low. To give a hypothetical example if the mean marks is 70 and the standard deviation is 15, all candidates securing raw marks 145 to 200 will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to infer equal distribution of ability of candidates in each batch of answer scripts. But that was apparently not done by the Commission. We give below the details of distribution of answer scripts which demonstrate that they were nowhere equal : General Knowledge Paper (18 Examiners) The distribution of answer scripts is : 50 papers (2 examiners), 100 (3 examiners), 150 (1 examiner), 200 (2 examiners), 250 (2 examiners), 300 (1 examiner), 350 (1 examiner), 400 (1 examiner), 500 (2 examiners), 648 (1 examiners) and 800 (2 examiners). Language Paper (14 Examiners) The distribution of answer scripts is : 231 papers (1 examiner), 300 (5 examiners), 350 (1 examiner), 400 (2 examiners), 450 (3 examiners), 700 (1 examiner), 800 (1 examiner). Law Paper-I (11 Examiners) - The distribution of answer scripts is : 100 papers (1 examiner), 300 (2 examiners), 400 (2 examiners), 450 (1 examiner), 600 (1 examiner), 700 (1 examiner), 775 (1 examiner), 800 (1 examiner), 900 (1 examiner). Law paper-II (10 examiners) - The distribution of answer scripts is : 200 papers (1 examiner), 300 (1 examiner), 350 (1 examiner), 450 (1 examiner), 500 (2 examiners), 650 (2 examiners), 700 (1 examiner), 140 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the results of 2000 examination which was the subject matter of S.C. Dixit. (For example, it was demonstrated that in some cases, the low marks awarded by liberal examiners had increased and high marks awarded by strict examiners had reduced, thereby achieving the opposite of the goal sought to be achieved -- that marks given by liberal examiners should be reduced and marks given by strict examiners should be increased). We however consider it appropriate to rely only on the anomalies/absurdities demonstrable with reference to the 2003 examination which is the subject matter of these petitions, and do not propose to rely on the anomalies noticed in regard to the 2000 examination. 34. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept these factors in view in determining the system of scaling. 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. 37. We may now refer to the decision of this Court in S. C. Dixit. The validity of scaling was considered in paras 31 to 33 of the judgment extracted below : "31. There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by applying the scaling formula. If scaling method had not been used, only those candidates whose answer-sheets were examined by liberal examiners alone would get selected and the candidates whose answer-sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners. The counsel for the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, upheld scaling on two conclusions, namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability (differences due to evaluation by strict examiners and liberal examiners). As scaling was a recognized method to bring raw marks in different subjects to a common scale and as the Commission submitted that they introduced scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not be rejected at the threshold as unworkable. But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technical expertise and leave them for decision of experts. (State of U.P. v. Renusagar Power Co. Ltd. - 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC 709, Federation of Railway Officers Association v. Union of India 2003 (4) SCC 289). There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail. 40. We should, however, record the fair submission on behalf of the Commission that it is not irrevocably committed to any particular system and will adopt a different or better system if the present system is found to be defective. Re : Point No. (iv). 41. The petitioners have requested that their petitions should be treated as being in public interest and the entire selection process in regard to Civil Judge (Junior Division) Examination, 2003 should be set aside. We are unable to accept the said contention. What has been made out is certain inherent defects of a particular scaling system when applied to the selection process of the Civil Judges (Junior Division) where the problem is one of examiner variability (strict/liberal examiners). N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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