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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 ..... reference to an issue which is the subject-matter of an earlier decision, is rejected. It is no doubt true that Judicial Service Rules govern the recruitment to Judicial Service, having been made in exercise of power under Article 234, in consultation with both the commission and the High Court. It also provides what examinations should be conducted and the maximum marks for each subject in the examination. But the Judicial Service Rules entrust the function of conducting examinations to the Commission. The Judicial Service Rules do not prescribe the manner and procedure for holding the examination 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the selection. We, therefore, direct that our decision holding that the scaling system adopted by the Commission is unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination. So far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case : a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) belonging to the Category 'BC' have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. [C] is less than the marks of the selected candidates). b) Where the aggregate of raw marks in the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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 (Main) examination and the marks awarded in the interview. On the recommendations made by Commission, appointments were made to 347 posts of Civil Judge, Junior Division. 4. The petitioners, who were unsuccessful, are aggrieved. They contend that the statistical scaling system adopted by the Commission is illegal as it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also contend that conversion of their raw marks into scaled marks, is illegal as it was done by applying an arbitrary, irrational and inappropriate scaling formula. It is submitted that the Commission's exercise of subjecting the marks secured by the candidates to scaling, has resulted in meritorious students being ignored, and less meritorious students being awarded higher marks and selected, thereby violating the fundamental rights of the candidates. 4.1) W.P. [C] No.165/2005 was filed on 5.4.2005 even before the final results were declared, praying (i) for a direction to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion) 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. It is submitted that under the proviso to Rule 50 of the U.P.Public Service Commission (Procedure and Conduct of Business) Rules, 1976, it is entitled to adopt any formula or method or device to eliminate variation in marks; that it found variation in the marks awarded by different examiners on account of a phenomenon known as 'examiner variability' and to eliminate it, statistical scaling was introduced. It is further submitted that matters relating to the conduct of Examination, evaluation of answer-scripts, application of methods to bring in uniformity in evaluation are matters of policy involving technical and scientific decisions based on expert opinion; that courts are not equipped to pronounce upon such matters and, therefore, should not interfere in the absence of manifest arbitrariness or mala fides; and that, at all events, in the absence of an opinion by a body of experts in the field of statistics certifying that the system of scaling adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, these petitions are neither for 'review' nor for 'setting aside' or 'questioning' the decision in S.C. Dixit. Therefore, the bar, referred to in Rupa Ashok Hurra, will not apply. 10. The contention of Commission also overlooks the fundamental difference between challenge to the final order forming part of the judgment and challenge to the ratio decidendi of the judgment. Broadly speaking, every judgment of superior courts has three segments, namely, (i) the facts and the point at issue; (ii) the reasons for the decision; and (iii) the final order containing the decision. The reasons for the decision or the ratio decidendi is not the final order containing the decision. In fact, in a judgment of this Court, though the ratio decidendi may point to a particular result, the decision (final order relating to relief) may be different and not a natural consequence of the ratio decidendi of the judgment. This may happen either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernor 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 (for short 'Judicial Service Rules') were made by the Governor of Uttar Pradesh in exercise of powers conferred by Article 234 and Article 309 of the Constitution, in consultation with the Commission and the Allahabad High Court, to regulate the recruitment and appointment to Uttar Pradesh Judicial Service. The Judicial Service Rules replaced the 'Uttar Pradesh Nyayik Sewa Niyamawali, 1951' which was in force earlier. The Judicial Service Rules were amended by the Uttar Pradesh Judicial Service (Amendment) Rules, 2003. 11.1) Rule 7 of the Judicial Service Rules provides that recruitment to the post of Civil Judge (Junior Division) shall be by direct recruitment on the basis of a competitive examination conducted by Commission. Part V of the said rules lays down the procedure for recruitment to Judicial Service. Rule 16 provides for competitive examination and Rule 19 deals with the syllabus. The said rules are extracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 provided. Thus the Judicial Service Rules constitute a complete code in itself in regard to recruitment to Judicial Service. It is also evident that the marks finally awarded to each candidate in the written examination and interview are crucial both for appointment as also for purposes of inter se seniority. 13. The petitioners point out that the Judicial Service Rules do not provide for substituting the actual marks obtained by a candidate by scaled marks. It is contended that the words marks obtained in the written papers in Note (i) of Appendix II clearly indicate that the actual marks obtained in the written examination alone should be taken into account and not any moderated or scaled marks; that in the absence of any provision for scaling in the Judicial Service Rules, the Commission had no authority to substitute the actual marks by 'scaled marks'; and that the places/ranks of the candidates shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prepared and placed before the Commission for final declaration of the result. The proviso to Rule 51 provides that the Commission with a view to eliminate variations in the ranks awarded to candidates at any time at any examination or interview, adopt any method, device or formula which they consider proper for the purpose. The Commission contends that having regard to the proviso to Rule 51 which specifically enables them to adopt any method, device or formula to eliminate variations in the marks awarded to any at any examination, they are entitled to adopt the scaling system to eliminate variations in marks. 15. The petitioners point out that the PSC Procedure Rules were not made in consultation with the High Court. On the other hand, the Judicial Service Rules, 2001 which came into effect from 1.7.2000, were made in consultation with both Commission and the High Court. It is, therefore, submitted that the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rules providing for the aggregation of marks and preparation of the merit list, are extracted below :- Judicial Service Rules PSC Procedure Rules. Rule 20(3). The Commission then shall prepare a final list of selected candidates in order of their proficiency as disclosed by aggregate of marks finally awarded to each candidate in the written examination and the interview. Note (i) of Appendix-II. - Marks obtained in the interview will be added to the marks obtained in the written papers and the candidates' place will depend on the aggregate of the both. Rule 51. The marks-sheets so obtained shall be opened on the last day of interview and immediately there after the marks of interview/ personality test shall be added to the marks obtained by the candidates in the written examination. Thereafter, on the basis of the totals so obtained the merit list shall be prepared and place before the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrected 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 examiner, they can be corrected appropriately by moderation. The moderation is either by adding (in the case of strict examiners) or deducting (in the case of liberal examiners) a particular number of marks which has been decided with reference to principles of moderation applied. If there is erratic or careless marking, then moderation is by fresh valuation by another examiner. Therefore, the marks assigned by the examiner as moderated will be the marks finally awarded to the candidates or marks obtained by the candidates. Moderation, it has to be held, is inherent in the evaluation of answer scripts in any large scale examination, where there are more than one examiner. 20. We cannot accept the contention of the petitioner that the words marks awarded or marks obtained in the written papers refers only to the actual marks awarded by the examiner. 'Valuation' is a process whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem 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 (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer- scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 corrective steps become necessary. (iii) After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. This may happens when for example, in a Civil Service examination, where Physics and Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriate to a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndidates 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 examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer scripts are evaluated by computerized/ scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted to. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/ conventional type question papers in regard to same subject; and that scaling should be resorted only where a common merit list has to be prepared in regard to candidates who have taken examination of different subjects, in pursuance of an option given to them. 27. But some Examining A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 Commission itself. 30.1) A. Edwin Harper Vidya Sagar Misra (in 'Research on Examinations in India) make it clear that 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. 30.2) A similar view is expressed by J.P. Guilford Benjamin Fruchter (in their treatise 'Fundamental Statistics in Psychology and Education' page 476-477). They say that two conditions are to be satisfied to apply scaling : (i) The population of students from which the distributions of scores arose must be assumed to have equal means and dispersions in all the abilities measured by the different tests; and (ii) the form of distribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately 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 continuous review and evaluation, that continuing improvement in the light of experience and new developments, taking into account advancement of knowledge, is essential. 31. The entire basis for applying scaling in regard to marks awarded by different examiners in the same subject is the assumption that all answer scripts have been thoroughly mixed, and that equal number of answer scripts drawn at random and sent to each examiner for valuation will contain answer scripts of candidates with equal distribution of abilities. When the distribution of abilities in each batch is approximately equal, the mean marks and standard deviation of the scaled marks of each batch will be identical. To put it differently, if each examiner is sent 300 answer scripts and each batch of 300 candidates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the examiners. But the effect of the scaling formula adopted by Commission is to average the marks of a batch of candidates and convert the raw marks of each candidate in the batch into scaled marks with reference to the average marks of the batch and the standard deviation. The scaling formula therefore, does not address or rectify the effect of strictness or liberality of the examiner. The scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 be assigned the equal scaled marks of 200. If the mean marks are 60 and the standard deviation is 15, all candidates securing 135 to 200 will be awarded the scaled marks of 200. Similarly, if the mean marks are 80 and the standard deviation is 20, all candidates securing raw marks between 180 to 200 will be awarded equal scaled marks of 200. In addition to the above hypothetical examples, we may give a concrete example. In regard to Examiner No. 14 in Language Paper, Table-II shows that the highest marks secured is 145. In regard to that examiner, the mean marks is 54.77 and standard deviation is 17.02. By applying the scaling formula, the marks of 145 secured by that candidate becomes 206 which is taken as 200 as per the formula. All candidates who we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), 1402 (1 examiner). Law paper-III (14 examiners) The distribution of answer scripts is : 150 papers (3 examiners), 200 (1 examiner), 250 (1 examiner), 300 (1 examiner), 350 (2 examiners), 400 (1 examiner), 444 (1 examiner), 500 (1 examiner), 550 (1 examiner), 900 (1 examiner), 1000 (1 examiner). Very large variation in the number of answer scripts allotted to each examiner has a bearing on the mean marks and the standard deviation. The fact that there was no proper randomization and distribution is also evident from the fact that though approximately equal number appeared in each segment of 10000 from among the roll nos. 1 to 51524, selection is inexplicably high in the first segment of roll nos. 1 to 10000. The particulars of roll nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced 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. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart-burn and dissatisfac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oderation 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 respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any meritorious candidate. If any candidate had secured higher marks in the written examination, even by applying scaling formula, he would still be benefited. 32. The Division Bench of the High Court observed that the process of scaling wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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). Neither mala fides nor any other irregularities in the process of selection is made out. The Commission has acted bona fide in proceeding with the selection and neither the High Court nor the State Government had any grievance in regard to selections. In fact, the scaling system applied had the seal of approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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