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Rajasthan High CourtHimanshu Agarwal And Ors vs R P S C, Ajmer
on 27 October, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJAIPUR BENCH
JAIPUR
ORDER
(1) D.B.CIVIL WRIT PETITION NO.3942/2007Sarita
NoushadVersusR.P.S.C. and others
(2) D.B.CIVIL WRIT PETITION NO.3726/2007Himanshu Agrawal and
othersVersusR.P.S.C. and others
(3) D.B.CIVIL WRIT PETITION NO.3814/2007Rajat
KhatriVersusR.P.S.C. and others
(4) D.B.CIVIL WRIT PETITION NO.4109/2007Miss Toshita
VermaVersusR.P.S.C. and others
(5) D.B.CIVIL WRIT PETITION NO.4115/2007Sunil
VermaVersusR.P.S.C. and others
(6) D.B.CIVIL WRIT PETITION NO.4167/2007Balveer Singh Jat and
othersVersusR.P.S.C. and others
(7) D.B.CIVIL WRIT PETITION NO.4227/2007Miss Divya
SinghVersusR.P.S.C. and others
(8) D.B.CIVIL WRIT PETITION NO.4384/2007Kapil
GuptaVersusR.P.S.C. and others
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(9) D.B.CIVIL WRIT PETITION NO.5288/2007Hari Singh
MeenaVersusR.P.S.C. and others
(10) D.B.CIVIL WRIT PETITION NO.5457/2007Narendra
MeenaVersusR.P.S.C. and others
(11) D.B.CIVIL WRIT PETITION NO.5618/2007Munesh Chand
YadavVersusR.P.S.C. and others
(12) D.B.CIVIL WRIT PETITION NO.5695/2007Dhanpat
MaliVersusR.P.S.C. and others
(13) D.B.CIVIL WRIT PETITION NO.6283/2007Suman
PaliwalVersusR.P.S.C. and others
(14) D.B.CIVIL WRIT PETITION NO.6852/2007Ramchand
GehlotVersusR.P.S.C. and others
(15) D.B.CIVIL WRIT PETITION NO.4350/2008PoojaVersusR.P.S.C. and
others
(16) D.B.CIVIL WRIT PETITION NO.417/2009Mukesh Parnami and
othersVersusR.P.S.C. and others
(17) D.B.CIVIL WRIT PETITION NO.418/2009Ms.Preeti
SharmaVersusR.P.S.C. and others
(18) D.B.CIVIL WRIT PETITION NO.4343/2007Ravindra Kumar Sharma
& anotherVersusR.P.S.C. and another
DATE OF ORDER --- October 27,2009
PRESENT
Himanshu Agarwal And Ors vs R P S C, Ajmer on 27 October,
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HONBLE MR.JUSTICE PREM SHANKER ASOPAHON'BLE MR.JUSTICE GUMAN
SINGH
Mr.Asgar Ali Khan,Mr.R.K.Mathur, Mr.S.P.Sharma, Mr.Rajendra
Soni,Mr.Vigyan Shah, Ms.Shikha Parnami on behalf of Mr.J.P.Goyal,
Mr.Param Pawan, Mr.G.S.Fouzdar, Mr.Shishupal Singh, Mr.Kapil
Gupta,Mr.Rajeev Surana and Mr.Bhaskar Dagar,for the petitioners
Mr.S.N.Kumawat, for the RPSC Mr.Ashok Gaur, for the Raj.High
Court
REPORTABLE BY THE COURT (Per P.S.Asopa J.)
(1) Since common questions of facts and law of applying the
scaling formula while awarding themarks in written examination of
Rajasthan Judicial Service, 2005 (RJS, 2005) are involved in
thematter, all the cases were heard together and are being decided
together by this common judgment.
(2) The facts of CWP No.3942/2007 Sarita Noushad V.Rajasthan
Public Service Commission andothers are taken as the leading
facts.
(3) On 19.11.2005, 85 posts of Civil Judge (Junior Division) and
Judicial Magistrate under theRajasthan Judicial Service Rules, 1955
(hereinafter referred to as `the RJS Rules, 1955') for generalas
well as reserved category were advertised which was referred as
`RJS Examination,2005'. Thelast date for submission of the
application forms was 9.1.2006 and the details of the categories of
theposts, as per the requisition, are as under:
S.No.
GENERAL GEN WOMEN S.C. GEN WOMEN S.T. GEN WOMEN OBC GEN WOMEN
TOTAL
- -09 0211 05 - -
08 0106 01 10 02
TOTAL 85
(4) Rajasthan Public Service Commission (RPSC) received 26,500
application forms including theapplication forms of the
petitioners. Out of the 26,500 applicants, 12,576 applicants
appeared in thewritten examination and after scaling, 244
candidates were called for interview and subsequently,78+9, in all
87, candidates have been selected and appointed.
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(5) The interviews were held in the month of June, 2007 and the
writ petition was filed by SaritaNoushad on 19.5.2007 challenging
the adoption of scaling formula in R.J.S. and further
seekingdirection to call her for interview on the basis of actual
marks `176' awarded to her out of 300 markswhich were scaled down
to `167', with the further relief of preparing fresh merit list.
Interim reliefwas also sought for appearing in the interview.
(6) The Division Bench of this Court on 1.6.2007 was not
inclined to grant any interim relief to thepetitioner while
considering the fact that Sarita Noushad was one of the women
candidates for twoseats reserved for women in Other Backward Class
category and in all, six women OBC candidates,who had secured more
marks than `168' have been called for interview and further, for
the reasonsindicated in the interim order dated 31.5.2007 passed in
another aforesaid CWP No.3726/2007Himanshu Agrawal and others
V.R.P.S.C. and another whereby interim relief was denied.
(7) Against the aforesaid interim order dated 1.6.2007 passed in
the writ petition filed by SaritaNoushad, SLP(C) No.10539/2007 was
filed and the same was disposed of on 12.12.2008 along withanother
SLP(C) No.10631/2007 and it was directed that any further
appointment made would besubject to the result of the writ
petitions. By the same order dated 12.12.2008, Writ Petition
(C)No.183/2008 and 186/2008 were allowed to be withdrawn by the
counsel to move to the HighCourt for which permission was granted
by the Supreme court.
(8) It is stated in the writ petition that the scaling formula
adopted by the RPSC is not applicable tothe RJS Rules, 1955 wherein
the scheme of examination is specifically prescribed in
Schedule-IIIappended thereto and referred in Rule 15 of the RJS
Rules, 1955. According to Schedule-III, acandidate is required to
obtain 35 percent marks in each of the law papers and 40 percent
marks inthe aggregate, to be called for interview. Further, as per
the said Schedule-III, there are two lawpapers Paper-I and Paper-II
carrying 100 marks each; the Language(i) Paper I Hindi Essary
carries50 marks and Language(ii) Paper-II English Essay carries 50
marks and for Viva Voce 35 marks areprovided. Thus, for the written
examination 300 marks and for viva voce 35 marks are provided. Itis
further stated in the writ petition that a candidate who failed to
obtain minimum of 45 percentmarks in the aggregate, both of written
and oral examination, is not entitled to be recommended bythe RPSC
but the petitioner, who obtained `176' raw marks out of 300 marks
as per Schedule-IIIwas entitled to be called for interview even as
per the ratio 1 : 3 fixed by the RPSC for the candidatesto be
called for interview on the basis of the total raw marks but she
was not called for interview.
(9) To substantiate the aforesaid, the petitioner has
demonstrated certain facts of the result ofscaling formula
regarding some of the candidates who have obtained less raw marks
which havebeen scaled up and they have been called for interview
subsequently selected and appointed whereasthe petitioners who were
entitled to be called for interview as per Schedule-III were either
not calledfor interview and even if called for interview, were not
selected and appointed despite having moreraw marks plus marks of
interview on account of applying scaling formula, therefore, by
adoptingthe scaling formula, the RPSC has treated un-equals equally
and the same has resulted in violationof Article 14 of the
Constitution of India.
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(10) It has also been stated in the writ petition by Sarita
Noushad that in her case, reduction of onemark in scaling has
rendered her ineligible to be called for interview.
(11) The State of Rajasthan has not filed reply to the writ
petition.
(12) High Court of judicature for Rajasthan, respondent No.3,
has filed an affidavit along letterdated 11.9.2007 stating therein
that the RPSC has never sought consent/consultation for
scalingprocedure to be adopted by it in RJS Examination, 2005.
(13) In the reply filed by the RPSC, it has not been disputed
that the RJS Rules, 1955 did not containany scaling formula nor
there is any statutory rules framed by the authorities concerned
underArticle 309 of the Constitution of India which authorises the
RPSC to adopt the scaling formula.However, scaling has been sought
to be justified by the RPSC in its reply by saying that the system
ofmoderation, normalisation and scaling is an integral part of
evaluation and finalisation of result ofthe examination and
further, the RPSC has been uniformly applying the said scaling
formula in allthe examinations where large number of candidates
appear, in order to remove deviation of themarking of the hard
examiner and liberal examiner. The scaling formula was adopted from
the book- `Scaling Techniques what, why & how by V.Natarajan
& K.Gunasekaran, which has been upheld bythe Division Bench of
this Court in Mahesh Kumar Khandelwal and 16 others V. State of
Rajasthanand others (1995(2) WLC (Raj.) 223).
(14) While deciding Application No.19849 dated 29.5.2009, vide
order dated 1.9.2009, this Courtdirected the RPSC to produce the
entire original record. Since entire original record was
notproduced by the RPSC, therefore, vide order dated 15.9.2009, the
RPSC was directed to furnish thefollowing information as per
record:
(i) List of the candidates who have obtained minimum 35% actual
marks in each law paper and 40%actual marks in the aggregate.
(ii) List of candidates who failed to obtain the aforesaid
minimum percentage of marks and afterapplying the formula of
scaling obtained minimum 35% marks in each law paper and 40% marks
inthe aggregate declared passed.
(iii) List of candidates who as per the actual marks were
entitled to be called for interview andfurther, list of the
candidates who were not entitled to be called for interview as per
actual marks buthave been called for interview by applying the
scaling formula.
(iv) The actual marks of the aforesaid candidates in each paper
prescribed in Schedule-III andscaled marks of the aforesaid
candidates.
(15) On the next date i.e. 29.9.2009, the C.D. as well as the
aforesaid lists along with cut off marks asper actual marks and
scaled marks have been produced by the RPSC and inspection of the
same wasallowed to the respective petitioners. After inspection of
the record, most of the petitioners havefiled affidavit(s) to
demonstrate unjust, unreasonable and arbitrary result which makes
the scaling
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formula irrational, which would be examined at the relevant
place.
(16) It is submitted by counsel for the petitioners that the RJS
Rules, 1955 prescribe specific schemeof examination in Schedule-III
appended thereto and as referred in Rule 15 and further, that
thenames of the candidates are to be recommended under rule 19 of
the RJS Rules, 1955, therefore,specific provision will hold the
field and thus, the RPSC has no statutory authority to prescribe
thescaling formula and the administrative formula can be only to
supplement and not supplant the RJSRules,1955. It is further
submitted that the RJS Rules, 1955 are pari materia with the U.P.
JudicialService Rules, 2001 wherein the U.P.Public Service
Commission was statutorily authorised toprescribe the formula under
proviso to Rule 51 of the U.P.Public Service Commission
(Procedureand Conduct of Business) Rules, 1976 but still the
Supreme Court in Sanjay Singh and another V.U.P.Public Service
Commission (2007) 3 SCC 720) has held that the special provision in
U.P.Judicial Service Rules, 2001 will prevail. It is submitted by
the petitioners that their cases are muchmore stronger than Sanjay
Singh (supra) inasmuch as there is no statutory authority vested
with theRPSC to prescribe such a scaling formula. It is also
submitted that adoption of the administrativescaling formula
without consent and consultation of the High Court is wholly beyond
thecompetence of the Commission and further resulted in unjust,
unreasonable, irrational, arbitraryincrease and decrease of the
marks to the detriment of the petitioners and similarly situated
personsvis-a-vis persons who were called for interview and
subsequently, selected and appointed. The saidarbitrary increase of
marks in case of the selected and appointed persons and decrease of
marks incase of petitioners and other similarly situated persons is
irrational and arbitrary, therefore, thesame is violative of
Articles 14 and 16 of the Constitution of India.
(17) Counsel for some of the petitioners have submitted that the
scaling formula adopted wasM+[xi-x]Q/Qi and last part of the said
scaling formula i.e. Q/Qi is not applicable where there are
nodifferent optional subjects and on account of adopting the
aforesaid scaling formula, the petitionershave not been called for
interview whereas as per the actual marks, they were entitled to
beinterviewed. Other counsel have also raised the grievance that on
account of scaling, the petitionershave not been selected even
after they have been interviewed and having more raw and marks
ofinterview.
(18) Lastly, counsel for the petitioners raised the argument
regarding adoption of scaling formulaand moderation simultaneously,
which is impermissible and scaling of marks in compulsory
papershave no relevance to be called for interview and short
listing is not permissible.
(19) Counsel for the RPSC has submitted that the scheme of
examination under U.P.Judicial ServiceRules, 2001 is different from
the RJS Rules, 1955 and the formula is also different which has
beenadopted objectively and uniformally to moderate the deviation
of the higher marking by the liberalexaminer and hard marking by
the hard examiner and placed reliance on a Division Benchjudgment
of this Court in Mahesh Kumar Khandelwal V. State (supra) which was
upheld by theSupreme Court vide order dated 22.1.1996 in SLP(C)
No.15682-84 of 1994.
(20) After recording submissions of the counsel for the
petitioners and the respondents on6.10.2009, this Court passed the
following order:
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From the pleadings of the parties and the submissions made by
them on 1.9.2009 and 29.9.2009,the following core questions emerge
for decision:
(i) Whether the Rajasthan Judicial Service Rules,1955 (in short
`the Rules of 1955'), which havebeen framed in exercise of powers
conferred by Article 234 read with Article 238 and proviso
toArticle 309 of the Constitution of India and which prescribe
specific scheme of examination underRule 15 read with Schedule-III
and Rule 19 of the Rules of 1955, will exclude the scheme
ofexamination and marking by the R.P.S.C. and further consultation
with the High Court is necessaryeven if some administrative formula
of scaling for marking is evolved ?
(ii) Whether the scheme of examination of the Rajasthan Judicial
Service Rules, 1955 is pari materiawith the U.P.Judicial Service
Rules, 2005 ? (Correct year 2001)
(iii) Whether the administrative scaling formula adopted by the
Rajasthan Public ServiceCommission is not applicable to the Civil
Judge (Junior Division)cum Judicial MagistrateExamination,2005
which was to be conducted as envisaged under Rule 15 read with
Schedule-IIIand Rule 19 of the Rules of 1955 wherein there is no
such scaling formula prescribed ?
(iv) Whether the aforesaid scaling formula has resulted in
unjust, unreasonable and arbitraryincrease and decrease of marks to
the detriment of the petitioners and similarly situated
personsvis-a-vis persons who have been called for interview and
subsequently selected and appointed ?
(v) In case the aforesaid four questions are answered in the
affirmative, then whether the judgmentof the Supreme Court in
Sanjay Singh and another V. U.P. Public Service Commission,
Allahabadand another (2007)3 SCC 720)will cover the controversy
raised in these writ petitions and whatrelief can be granted to the
petitioners ?
Counsel for the respective petitioners may file affidavit(s) on
08th October, 2009 and counsel forthe respondent R.P.S.C. may file
counter affidavit, if any, by 12th October, 2009.
List on 15.10.2009 along with connected cases.
A p h o t o s t a t c o p y o f t h i s o r d e r b e p l a c e
d o n t h e f i l e s o f c o n n e c t e d c a s e s C W
PNo.5695/2007,3726/2007, 3814/2007, 4109/2007, 4115/2007,
4167/2007, 4227/2007,4384/2007, 5288/2007, 5457/2007, 5618/2007,
6283/2007, 6852/2007, 4350/2008, 417/2009and 418/2009.
(21) On 15.10.2009, after hearing both the sides on the
aforesaid questions and affidavits filed by thepetitioners, the
judgment was reserved.
(22) We have gone through record of the writ petitions, the
record produced by the RPSC and theaffidavits filed by the
petitioners and have further considered the rival submissions of
counsel forthe parties and examined the same with reference to the
RJS Rules, 1955, violation of Articles 14 and16 of the Constitution
of India and applicability of the judgment of the Supreme Court in
Sanjay
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Singh (supra).
(23) Before proceeding further, we would like to refer the fact
that although in the RJS Rules, 1955,there is a reference of
Article 238 along with Article 234 and proviso to Article 309 of
theConstitution of India but the said Article 238 has been deleted
by the Constitution (7th Amendment)Act, 1956. The RJS Rules, 1955
have been framed by His Highness the Rajpramukh, afterconsultation
with the Rajasthan Public Service Commission and the High Court of
Judicature forRajasthan. As regards the procedure for framing of
Rules and amendment, there is no dispute thatusually the High Court
initiates the process and the Governor, after consultation with the
RPSC, hasauthority to promulgate the new Rules or amend the
existing Rules. Relevant Rules 7, 14, 15 alongwith Schedule-III and
19 of the RJS Rules of 1955 are as follows:
Rule-7
7.Source of recruitment.- Recruitment to the service, shall be
made to the post of Munsiffs on theresult of a competitive
examination conducted, by the Commission. (emphasis supplied)
Rule-14
14.Examination.- A competitive examination for recruitment to
the Service, shall be held at suchintervals as the Governor may, in
consultation with the Court, from time to time determine, andshall
be conducted by the Commission at such time and at such dates as it
may notify. (emphasissupplied) Rule-15
15.Syllabus.- The syllabus and the rules relating to the
competitive examination shall be as inSchedule-III:
Provided that they may be amended by the Governor from time to
time in consultation with theCommission and the Court. (emphasis
supplied) Schedule-III Syllabus for competitive examinationfor
recruitment to the Rajasthan Judicial Service A. Competitive
Examination for recruitment to theRajasthan Judicial Service shall
consist of -
(a) a written examination in the subject hereinafter mentioned
and
(b) an interview to test the general knowledge of the candidate
and his fitness for appointment.
B. The examination will be in the following subject each subject
carrying the number of marksshown against each:
Subject Marks
1.Law Paper-I 100
2.Law Paper-II 100
3.Language(i) Paper I Hindi Essay 50
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4.Language(ii) Paper II English Essay 50
5.Viva Voce 35 Law Paper I is designed to test the knowledge of
the candidates in civil law andprocedure e.g. drafting, pleading,
framing issues and writing out judgments etc. in civil cases.
Law Paper II is designed to test the practical knowledge of the
candidates in criminal law andprocedure e.g. Framing charges and
writing out judgments etc. in criminal cases.
Law Paper I and II shall be answered either in English or in
Hindi but no candidate shall bepermitted to answer any of these
papers partly in Hindi and partly in English.
(emphasis supplied) After the marks obtained by the candidates
in written test have been receivedthe Commission shall call for
interview such of them as have obtained a minimum of 35
percentmarks in each of the law papers and 40 percent marks in the
aggregate. (emphasis supplied) Ininterviewing a candidate, the
suitability for employment to the Judicial Service shall be tested
withreference to his record at the School, College and University
and his character, personality addressand physique. The questions
which may be put up to him maya be of a general nature and will
notnecessarily be academic or legal. The candidate will also be put
questions to test his generalknowledge including knowledge of
current affairs and present day problems. The marks so awardedshall
be added to the marks obtained in the written test by each
candidate.
......
Rule-19
19.List of candidates recommended by the Commission.-(1) The
Commission shall prepare a list ofthe candidates recommended by
them for direct recruitment in order of their proficiency
asdisclosed by their aggregate marks. If two or more of such
candidates obtain equal marks in theaggregate the Commission shall
arrange them in order of merit on the basis of their
generalsuitability for service: (emphasis supplied) Provided that
the Commission shall not recommend anycandidate who has failed to
obtain a minimum of 45% marks in the aggregate both of Written
andOral examinations: (emphasis supplied) Provided further that
while selecting candidates for thevacancies so advertised, the
Commission may (i) if intimation of additional requirement is sent
tothe Commission before the selection and (ii) if suitable persons
are available, keep on their reservelist more candidates whose
number shall not exceed 50% of the advertised vacancies, the names
ofsuch candidates may be recommended on requisition to the
appointing authorities within sixmonths from the date on which
original list is forwarded by the Commsision to the Governor.
(2) Two copies of such list shall be submitted by the Commission
to the Governor.
(24) A perusal of the aforesaid provisions of the RJS Rules,
1955 show that in Rule 7, there is areference for holding the
competitive examination for recruitment to the service to be
conducted bythe Commission as the Governor may, in consultation
with the Court, from time to time, determine;in Rule 15 also, there
is a reference that the Syllabus and the rules relating to the
competitive
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examination shall be as in Schedule-III which may be amended by
the Governor, from time to time,in consultation with the Commission
and the High Court. Then, in Schedule-III, the
competitiveexamination has been divided in Part-A and B. Part-A is
further divided in part (a) a writtenexamination in the subject
hereinafter mentioned and part (b) an interview to test the
generalknowledge of the candidate and his fitness for appointment.
In Part-B, it has also been mentionedthat after the marks obtained
by the candidates in written test have been received, the
Commissionshall call for interview such of them as have obtained a
minimum of 35 percent marks in each of thelaw papers and 40 percent
marks in the aggregate.
(25) As stated above, there is no dispute that for the procedure
for framing of Rules andamendment, usually the High Court initiates
the process of framing of RJS Rules, 1955/amendmentor course of
examination and the Government, after consultation with the High
Court, sends arequisition to the Commission for holding the
examination. Thus, the RPSC is the examining bodyand has a right to
prepare the list of candidates recommended by it for direct
recruitment in order oftheir proficiency, as disclosed by their
aggregate marks as per Rule 19, which further provides thatthe RPSC
shall not recommend any candidate who failed to obtain 45 percent
marks in theaggregate for all categories i.e. general as well as
reserved category, of both written and oralexamination.
(26) Neither scaling formula prescribed in RJS Rules, 1955 nor
the procedure for amendment wasfollowed nor consultation for
adoption of the administrative formula was made with the High
Court.
(27) In Sanjay Singh V. U.P.Public Service Commission (supra)
Rule 16, 19, 20(3) and Note (i) ofAppendix-II of the Rules of 2001
with reference to the U.P.Public Service Commission (Procedureand
Conduct of Business) Rules, 1976 have been examined in Para 11.1
and 11.2 to paras 22. Thelanguage of the said Rules is as
follows:
Rule 16 "16. Competitive Examination.-The examination may be
conducted at such time and on suchdates as may be notified by the
Commission and shall consist of -
(a) a written examination in such legal and allied subject
including procedure, as may be included inthe Syllabus prescribed
under rule 19, unless the same is otherwise modified by the
Governor inconsultation with the court and the Commission;
(emphasis supplied) Rule 19
19. Syllabus - The syllabus and the rules relating to the
competitive examination shall be such asgiven in the Appendix II,
provided that the syllabus and rules may be amended by the Governor
inconsultation with the Commission and Court."
(emphasis supplied) Judicial Service Rules
20.(3) The Commission then shall prepare a final list of
selected candidates in order of theirproficiency as disclosed by
aggregate of marks finally awarded to each candidate in the
writtenexamination and the interview.
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Note(i) of Appendix II - (i) The marks obtained in the interview
will be added to the marks obtainedin the written papers and the
candidate's place will depend on the aggregate of both.
(emphasissupplied) PSC Procedure Rules
51. The marks sheets so obtained shall be opened on the last day
of interview and immediatelythereafter the marks of
interview/personality test shall be added to the marks obtained by
thecandidates in the written examination. Therafter, on the basis
of the totals so obtained the merit listshall be prepared and
placed before the Commission for final declaration of the
result:
Provided that the Commission may, with a view to eliminating
variation in the marks awarded tocandidates at any examination or
interview, adopt any method, device or formula which theyconsider
proper for the purpose. (emphasis supplied) (28) U.P.Public Service
CommissionProcedure & Conduct of Business) Rules,1976 are
having no relevance in the instant case as theauthority concerned
has not promulgated any RPSC Procedure Rules for conducting
theexamination and giving statutory authority to the RPSC to adopt
any method, device or formulawhich they may consider proper for
eliminating variation in the marks awarded to the candidates atany
examination. Therefore, for the sake of convenience, we compare the
relevant portion of Rule 15read with Schedule-III and Rule 19 of
the RJS Rules, 1955 with the relevant portion of Rule 20(3)and
Note(i) of Appendix-II of the UP Judicial Service Rules, 2001,
which is as under:
RJS Rules,1955 U.P.Judicial Service Rules,2001 Rule-15
15.Syllabus.-The syllabus and the rules relating to the
competitive examination shall be as inSchedule-III:
Provided that they may be amended by the Governor from time to
time in consultation with theCommission and the Court. (emphasis
supplied) Schedule-III Syllabus for competitive examinationfor
recruitment to the Rajasthan Judicial Service A.Competitive
Examination for recruitment to theRajasthan Judicial Service shall
consist of -
(emphasis supplied)
(a) a written examination in the subject hereinafter mentioned
and
(b) an interview to test the general knowledge of the candidate
and his fitness for appointment.
B. The examination will be in the following subject each subject
carrying the number of marksshown against each:
Subject Marks
2.Law Paper-II 100 Hindi Essay English Essay
5.Viva Voce 35
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----
After the marks obtained by the candidates in written test have
been received the Commission shallcall for interview such of them
as have obtained a minimum of 35 percent marks in each of the
lawpapers and 40 percent marks in the aggregate. (emphasis
supplied) Rule-19
19.List of candidates recommended by the Commission.-
20.(3) The Commission then shall prepare a final list of
selected candidates in order of theirproficiency as disclosed by
aggregate of marks finally awarded to each candidate in the
writtenexamination and the interview.
Note(i) of Appendix II - (i) The marks obtained in the interview
will be added to the marks obtainedin the written papers and the
candidate's place will depend on the aggregate of both.
(emphasissupplied) RJS Rules,1955 U.P.Judicial Service Rules,2001
(1) The Commission shall prepare a list ofthe candidates
recommended by them for direct recruitment in order of their
proficiency asdisclosed by their aggregate marks. If two or more of
such candidates obtain equal marks in theaggregate the Commission
shall arrange them in order of merit on the basis of their
generalsuitability for service: (emphasis supplied) Provided that
the Commission shall not recommend anycandidate who has failed to
obtain a minimum of 45% marks in the aggregate both of Written
andOral examinations: (emphasis supplied) (29) Having reproduced
both the Judicial Service Rules,now we proceed to examine the
questions with reference to Sanjay Singh (supra) for which
thepetitioners submitted that it applies to the present case
whereas the respondents submitted that itdoes not apply, which as a
matter of fact, is Question No.(v) relates to aforesaid issue and
answer ofwhich depends on the answer of Questions No.(i) to
(iv).
Question(i) Whether the Rajasthan Judicial Service Rules,1955
(in short `the Rules of 1955'), whichhave been framed in exercise
of powers conferred by Article 234 read with Article 238 and
proviso toArticle 309 of the Constitution of India and which
prescribe specific scheme of examination underRule 15 read with
Schedule-III and Rule 19 of the Rules of 1955, will exclude the
scheme ofexamination and marking by the R.P.S.C. and further
consultation with the High Court is necessaryeven if some
administrative formula of scaling for marking is evolved ?
Question No.(i) can be sub divided for the convenience, as
follows:
Q.(i)(a) The Scheme of Examination under the RJS Rules,1955 and
scaling formula.
(i)(b) Scaling supplement or supplanting the RJS Rules,
1955.
Q.(i)(a) The Scheme of Examination under the RJS Rules,1955 and
scaling formula.
(30) Article 238 of the Constitution of India has become
redundant, as indicated above and Article234 and proviso to Article
309 of the Constitution of India have been considered by the
SupremeCourt in Sanjay Singh (supra) in para 17 and it has been
held that the Judicial Service Rules entrust
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the function of conducting examinations to the Commission. The
Judicial Service Rules do notprescribe the manner and procedure for
holding the examination and evaluation of answer scriptsand award
of the final marks and declaration of the results. Therefore, it is
for the Commission toregulate 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 toregulate the procedure and conduct of the examination,
they will naturally apply to any examinationconducted by it for
recruitment to any service, including the Judicial Service. But
where the JudicialService Rules make a specific provision in regard
to any aspect of examination, such provision willprevail, and the
provisions of the PSC Procedure Rules, to the extent it is
inconsistent with theJudicial Service Rules, will be inapplicable
and further held that the field is occupied by Rule 20(3)and
Note(i) of Appendix-II which will prevail over the general
provision under Rule 51 of the UPPublic Service Commission Rules.
Para 17 and 18 of the judgment of the Supreme Court in SanjaySingh
(supra) are as under:
17.It is no doubt true that Judicial Service Rules govern the
recruitment to Judicial Service, havingbeen made in exercise of
power under Article 234, in consultation with both the commission
and theHigh Court. It also provides what examinations should be
conducted and the maximum marks foreach subject in the examination.
But the Judicial Service Rules entrust the function of
conductingexaminations to the Commission. The Judicial Service
Rules do not prescribe the manner andprocedure for holding the
examination and valuation of answer-scripts and award of the final
marksand declaration of the results. Therefore, it is for the
Commission to regulate the manner in which itwill conduct the
examination and value the answer scripts, subject, however, to the
provisions of theJudicial Service Rules. If the Commission has made
Rules to regulate the procedure and conduct ofthe examination, they
will naturally apply to any examination conducted by it for
recruitment to anyservice, including the judicial service. But
where the Judicial Service Rules make a specific provisionin regard
to any aspect of examination, such provision will prevail, and the
provision of PSCProcedure 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 ProcedureRules will yield to the Judicial Service
Rules. (emphasis supplied)
18.The manner in which the list of candidates as per merit
should be prepared is provided both inthe 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 forthe aggregation of marks and
preparation of the merit list, are extracted below :-
Judicial Service Rules
20.(3) The Commission then shall prepare a final list of
selected candidates in order of theirproficiency as disclosed by
aggregate of marks finally awarded to each candidate in the
writtenexamination and the interview.
Note(i) of Appendix II - (i) The marks obtained in the interview
will be added to the marks obtainedin the written papers and the
candidate's place will depend on the aggregate of both.
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PSC Procedure Rules
51. The marks sheets so obtained shall be opened on the last day
of interview and immediatelythereafter the marks of
interview/personality test shall be added to the marks obtained by
thecandidates in the written examination. Therafter, on the basis
of the totals so obtained the merit listshall be prepared and
placed before the Commission for final declaration of the
result:
Provided that the Commission may, with a view to eliminating
variation in the marks awarded tocandidates at any examination or
interview, adopt any method, device or formula which theyconsider
proper for the purpose.
(emphasis supplied) As the field is occupied by Rule 20(3) and
Note (i) of Appendix-II of JudicialService Rules, they will prevail
over the general provision in Rule 51 of PSC Procedure
Rules.(emphasis supplied) (31) Here in the instant case, there is
no dispute that the RJS Rules, 1955 havebeen framed under Article
234 read with proviso to Article 309 of the Constitution of India
andthere is no specific provision with regard to scaling of marks.
It is also not disputed by the RPSC thatneither there is any
statutory rule authorising it to prescribe the scaling formula nor
there is such aprovision in the RPSC Manual but the submission on
behalf of the RPSC is that the evaluation of theanswer-scripts of
the written examination is connected with the examination to be
conducted by theRPSC as envisaged under Rules 7 and 14, therefore,
the RPSC has inherent right to prescribe theprocedure for
examination. In our view, a perusal of Rule 15 read with specific
scheme prescribingsyllabus and rules relating to the competitive
examination under the RJS Rules, 1955 inSchedule-III leaves no
discretion with the RPSC to prescribe any scaling formula and the
field isoccupied by Rule 15 read with Schedule-III of the RJS
Rules, 1955.
(i)(b) Scaling supplement or supplanting the RJS Rules,
1955.
(32) Adoption of the said administrative scaling formula on the
recommendation of the expertcommittee, having no member from the
legal field without consultation of the High Court, will
beinconsistent with the aforesaid Rule 15 read with Schedule-III of
the RJS Rules, 1955 and therefore,the scaling formula is
in-applicable. The RPSC is duty bound to follow the RJS Rules, 1955
whichhave been framed in consultation with, both the Commission and
the High Court and even if theRPSC wanted to adopt the scaling
formula in RJS Examination,2005 then also, the consultationwith the
High Court and notification by the Governor is necessary to amend
the Rules; otherwise,the same would amount to supplanting the Rules
resulting in amendment of the Rules withoutfollowing the due
procedure of law. For this reason also, scaling formula will not
apply so far as theRJS Rules, 1955 are concerned.
(33) The inherent right of the RPSC for evaluation process is
applicable only when there is noinconsistency between the concerned
service rules on applying the scaling formula and in case ofany
inconsistency, the concept of inherent right will not apply where
the Commission is duty boundto conduct the examination as per the
Rules concerned under which the advertisement has beenissued.
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(34) We answer Question No.(i) in the affirmative that the
scaling formula is not applicable to theRJS Rules, 1955 and the
same cannot be made applicable on the basis of the recommendations
ofthe Committee, without following the procedure as envisaged under
Article 234 read with proviso toArticle 309 of the Constitution of
India.
Question No.(ii)- Whether the scheme of examination of the
Rajasthan Judicial Service Rules, 1955is pari materia with the
U.P.Judicial Service Rules, 2005 ? (correct year 2001) (35)
Submission ofMr.Kumawat, appearing for the RPSC is that the RJS
Rules, 1955 are different from the U.P.Judicial Service Rules, 2001
for the reason that in the RJS Rules, 1955 in Schedule-III, the
word`obtained' mentioned in the line - `After the marks obtained by
the candidates in written test havebeen received' and further
mention of the word `obtained' just before the words minimum of
35percent marks in each of the law papers and 40 percent marks in
the aggregate, refers to the marksobtained by the candidate after
scaling.
(36) Mr.Kumawat has also submitted that the formula of scaling
in Sanjay Singh (supra) and thepresent case is different,
therefore, on this count also, no parity can be taken from Sanjay
Singh(supra).
(37) We have comparatively examined the relevant part of Rule 15
read with Schedule-III and Rule19 of the RJS Rules, 1955 and Rule
20(3) Note(i) of Appendix-II of the U.P. Judicial Service
Rules,2001 which has already been referred while answering Question
No.(i).
(38) In Sanjay Singh (supra), in para 18, Note (i) of
Appendix-II, the words ` marks obtained' havebeen referred,
therefore, the word `obtained' will not make any difference for
making applicable thescaling formula. In para 21 of Sanjay Singh
(supra) it has been held by the Supreme Court that`scaled scores'
or `scaled marks' cannot be considered to be `marks awarded to a
candidate in thewritten examination. Para 21 of Sanjay Singh
(supra) is as follows:
21.But the question is whether the raw marks which are converted
into scaled scores on an artificialscale which assumed variables
(assumed mean marks and assumed standard deviation) can
beconsidered as 'marks finally awarded' or 'marks obtained'. Scaled
scores are not marks awarded to acandidate in a written
examination, but a figure arrived at for the purpose of being
placed on acommon scale. It can vary with reference to two
arbitrarily fixed variables, namely 'Assumed Mean'and 'Assumed
Standard Mean'. We have dealt with this aspect in greater detail
while dealing withquestion (iii). For the reasons given while
considering question (iii), we hold that 'scaled scores' or'scaled
marks' cannot be considered to be 'marks awarded to a candidate in
the writtenexamination'. Therefore, scaling violates Rule 20(3) and
Note (i) of Appendix-II of Judicial ServiceRules. (emphasis
supplied) (39) The scaling formula adopted by the RPSC and the UP
Public ServiceCommission are as under:
Scaling Formula applied by the Rajasthan Public Service
Commission M+(xi-X) o oi Where M =Combined mean of All
Examiner/subjects xi = Raw marks X = Examiner/subject mean o =
PooledStandard Deviation All Examiners/Subjects oi= Standard
Deviation of the Examiners/Subjectsconcerned Scaling Formula
applied by the U.P.Public Service Commission Z=Assumed mean+
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(X-M) x Assumed SD) SD Z = is the scaled score X = is the raw
mark M = is the mean of raw marksof the group/subject SD= is the
standard deviation of raw marks of the group/subject.
(40) Mr.Kumawat has submitted that the aforesaid scaling formula
of RPSC has been upheld by thisCourt in Mahesh Kumar Khandelwal
(supra) which was further upheld by the Supreme Court.
(41) The relevant paras 24, 25, 28, 29, 30.1, 30.2, 30.3, 30.4,
33, 49 of Sanjay Singh (supra) relatingto scaling formula are as
under:
24. In the Judicial Service Examination, the candidates were
required to take the examination inrespect 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 whichhave a competitive
situation where candidates have the option of selecting one or few
among avariety of heterogenous subjects and the number of students
taking different options also vary and itbecomes necessary to
prepare a common merit list in respect of such candidates. Let us
assume thatsome candidates take Mathematics as an optional subject
and some take English as the optionalsubject. It is well-recognised
that a mark of 70 out of 100 in mathematics does not mean the
samething as 70 out of 100 in English. In English 70 out of 100 may
indicate to an outstanding studentwhereas in Mathematics, 70 out of
100 may merely indicate an average student. Some optionalsubjects
may be very easy, when compared to others, resulting in wide
disparity in the markssecured by equally capable students. In such
a situation, candidates who have opted for the easiersubjects may
steal an advantage over those who opted for difficult subjects.
There is anotherpossibility. The paper setters in regard to some
optional subjects may set questions which arecomparatively easier
to answer when compared some paper setters in other subjects who
set tougherquestions 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
appropriateto a degree level and examiner 'B' sets a paper in
Chemistry appropriate for matriculate level. Inview of these
peculiarities, there is a need to bring the assessment or valuation
to a common scale sothat the inter se merit of candidates who have
opted for different subjects, can be ascertained. Themoderation
procedure referred to in the earlier para will solve only the
problem of examinervariability, where the examiners are many, but
valuation of answer scripts is in respect of a singlesubject.
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 semerit across
different subjects, statistical experts have evolved a method known
as scaling, that iscreation of scaled score. Scaling places the
scores from different tests or test forms on to a commonscale.
There are different methods of statistical scoring. Standard score
method, linear standardscore method, normalized equi-percentile
method are some of the recognized methods for scaling.
25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their
publication "Research on Examinations inIndia" have tried to
explain and define scaling. We may usefully borrow the same. A
degree'Fahrenheit' is different from a degree 'Centigrade'. Though
both express temperature in degrees,the 'degree' is different for
the two scales. What is 40 Degrees in Centigrade scale is 104
Degrees inFahrenheit scale. Similarly, when marks are assigned to
answer-scripts in different papers, say byExaminer 'A' in Geometry
and Examiner 'B' in History, the meaning or value of the 'mark'
is
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different. Scaling is the process which brings the mark awarded
by Examiner 'A' in regard toGeometry scale and the mark awarded by
Examiner 'B' in regard to History scale, to a commonscale. Scaling
is the exercise of putting the marks which are the results of
different scales adopted indifferent subjects by different
examiners into a common scale so as to permit comparison of inter
semerit. By this exercise, the raw marks awarded by the examiner in
different subjects is converted toa 'score' on a common scale by
applying a statistical formula. The 'raw marks' when converted to
acommon scale are known as the 'scaled marks'. Scaling process,
whereby raw marks in differentsubjects are adjusted to a common
scale, is a recognized method of ensuring uniformity inter seamong
the candidates who have taken examinations in different subjects,
as, for example, the CivilServices Examination.
28. Let us now examine the reasons as to why the Commission
adopted 'scaling' instead ofmoderation. The Committee states that
the anomalies caused on account of 'examiner variability'was
engaging its attention. It found that a candidate's score may
depend upon the "chance' factor ofwhether his answers script is
assessed by a lenient or a strict examiner; and that in an extreme
case,while a candidate of a given merit may get a First
Class/Division, another student of equal meritmay be declared to
have failed. Therefore, the Commission constituted a Committee to
carry out anindepth study into the matter and suggest appropriate
means to ensure that the evaluation was onmore equitable basis. The
Committee by its Report dated 2.9.1996 suggested statistical
scalingsystem as the remedy and recommended the linear standard
score method which operates on thefollowing formula :
Z= Assumed mean + [ (X-M) x Assumed S.D.] SD Z= is the Scaled
Score. X = is theRaw mark.
M = is the mean of Raw Marks of the group/subject.
S.D.= is the Standard Deviation of Raw Marks of the
group/subject.
The Committee suggested the following '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 thesaid
group/subject.
(iv) If scaled score after scaling is more than maximum marks,
then candidate will be allottedmaximum marks in the said
group/subject.
29. Ever since then, the Commission has been following the
statistical scaling. According to theCommission, the scaling method
is rational, scientific and reasonable and would lead to
assessmentof inter se merit of the candidates in a just and proper
manner. The use of the said method was
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reviewed by an Expert Committee on 31.7.2000 and it was
reiterated that the formula and methodpresently used for scaling
can be continued to be used in future also and there was no need
tochange 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 thispurpose, 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 clearthat scaling will be useful and
effective only if the distribution of marks in the batch of
answerscripts sent to each examiner is approximately the same as
the distribution of marks in the batch ofanswer 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
conditionsare to be satisfied to apply scaling : (i) The population
of students from which the distributions ofscores arose must be
assumed to have equal means and dispersions in all the abilities
measured bythe different tests; and (ii) the form of distribution,
in terms of skewness and kurtosis, must be verysimilar from one
ability to another. He proceeds to refer to the disadvantages of
scaling thus :
"Unfortunately, we have no ideal scales common to all these
tests, with measurements which wouldtell us about these population
parameters. Certain selective features might have brought about
ahigher mean, a narrower dispersion, and a negatively skewed
distribution on the actual continuumof ability measured by one
test, and a lower mean, a wider dispersion, and a
symmetricaldistribution on the continuum of another ability
represented by another test. Since we can neverknow definitely
about these features for any given population, in common scaling we
often have toproceed on the assumption that actual means, standard
deviations, and form of distribution areuniform for all abilities
measured. In spite of these limitations, it is almost certain that
derivedscales provide more nearly comparable scales than do raw
scores."
30.3) V. Natarajan & K. Gunasekaran in their treatise
'Scaling Techniques - what, why and how',have warned :
"If one studies the literature in this field, he can find that
there are a number of methods availableranging from simple to
complex. Each has its own merits and demerits and can be adopted
onlyunder certain conditions or making certain assumptions."
The Authors describe the Linear Standard Score method (which is
used by the Commission) thus :
"Unlike Z-score (Standard score) which has a mean of 'zero' and
standard deviation 'one', the linearstandard score has some
pre-determined mean and standard deviations.
..the choice of the mean and standard deviations is purely
arbitrary. Each has its own advantagesand disadvantages and useful
for specific purpose only. It may be emphasized here that both
thestandard scores and linear standard scores retain the shape of
the original distribution of raw
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marks. Therefore, if the original distribution is 'normally'
distributed, then any type of LinearStandard Scores will also be
'normally' distributed. Taking the Normal Curve as the model,
variouspoints in other scales are plotted. It should be, however,
noted that the kind of relationship shown inFigure -2 between
normal curve vis-`-vis the other scores are valid only if the raw
score distributioncan be assumed to approximately normally
distributed. (emphasis supplied) 30.4) The KothariReport, 1976
('Policy & Selection Methods' published by UPSC) while
referring to scaling in regardto papers in different subjects, by
using appropriate statistical techniques as a recognized
procedurefor improving the reliability of examination as a tool for
selection, however cautions that the methodshould be under
continuous review and evaluation, that continuing improvement in
the light ofexperience and new developments, taking into account
advancement of knowledge, is essential.
33. We will next refer to apparent anomalies which show scaling
of marks is arbitrary. TheCommission has furnished five Tables
relating to the five subjects showing the following particulars:
(i) The number of examiners, (ii) Number of answer scripts allotted
to each examiner; (iii) Meanmarks of each examiner; (iv) Standard
deviation of the marks allotted by each examiner; (v)Minimum raw
marks secured by a candidate in the batch of answer-scripts
corrected by eachexaminer; (vi) Maximum raw marks secured by a
candidate in the batch of answer-scripts correctedby each examiner.
The Commission has also furnished the tabulation of scaled and
actual marks ofall the candidates. An examination of the
particulars furnished discloses several glaring anomalies.
49. Learned counsel for the Commission contended that scaling
has been accepted as a standardmethod of evaluation in the
following decisions and therefore it should be approved :-
(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR
157], upheld by this Court byorder dated 11.3.1987 in SLP (C) No.
14000/1986.
(ii) Mahesh Kumar Khandelwal vs. State of Rajasthan [1994 (1)
Raj.LR 533] upheld by this Court byorder dated 22.1.1996 in SLP(c)
No. 15682-15684 of 1994. (emphasis supplied)
(iii) K. Channegowda vs. Karnataka Public Service Commission
[2005(12) SCC 688).
All the three cases related to moderation and not scaling. There
are, however, passing references toscaling as one of the methods to
achieve common standard of assessment. The fact that scaling is
astandard method of assessment, when a common base has to be found
for comparative assessmentof candidates taking examinations in
different optional subjects, is not in dispute. In fact
theCommission may continue to adopt the said system of scaling,
where a comparative assessment is tobe made of candidates having
option to take different subjects. The question is whether scaling,
inparticular, linear standard scaling system as adopted by the
Commission, is a suitable process toeliminate 'examiner
variability' when different examiners assess the answer scripts
relating to thesame subject. None of the three decisions is of any
assistance to approve the use of method of'scaling' used by the
Commission. (emphasis supplied) (42) On comparing the scaling
formuladiscussed by the Supreme Court in Sanjay Singh (supra) and
the scaling formula adopted by theRPSC in the instant case, the
applicability of which has been discussed while dealing with
QuestionNo.(i), we find from record that increase/decrease of the
marks of the petitioners rendered them
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either ineligible for interview and even if interviewed after
scaled marks, then the same resulted intheir non-selection whereas
persons who have been selected and appointed were not even
eligiblefor interview as per the raw marks. Our conclusion is that
the RJS Rules, 1955 and the U.P.JudicialService Rules, 2001 are
pari materia and both the scaling formulas are of similar nature
and further,the same is not of moderation which has been upheld in
Mahesh Kumar Khandelwal (supra) anddistinguished in Para 49 of
Sanjay Singh (supra).
(43) In view of the above, Question No.(ii) is also answered in
the affirmative and it is held that theRJS Rules, 1955 are pari
materia with the UP Judicial Service Rules, 2001 in the matter of
selectionand appointment.
Question No.(iii)- Whether the administrative scaling formula
adopted by the Rajasthan PublicService Commission is not applicable
to the Civil Judge (Junior Division)cum Judicial
MagistrateExamination,2005 which was to be conducted as envisaged
under Rule 15 read with Schedule-IIIand Rule 19 of the Rules of
1955 wherein there is no such scaling formula prescribed ?
(44) This question has already been discussed while answering
Question Nos.(i) and (ii) inaffirmative wherein Rule 15,
Schedule-III and Rule 19 of the RJS Rules, 1955 have been
interpretedand there is no dispute that the RJS Rules of 1955 do
not prescribe any scaling formula, and further,the scaling formula
violates Rule 15 read with Schedule-III and Rule 19 of the RJS
Rules, 1955,therefore, Question No.(iii) is also answered in the
affirmative.
Question No.(iv) Whether the aforesaid scaling formula has
resulted in unjust, unreasonable andarbitrary increase and decrease
of marks to the detriment of the petitioners and similarly
situatedpersons vis-a-vis persons who have been called for
interview and subsequently selected andappointed ?
(45) Some of the details of the record produced by the RPSC in
the form of lists (i) to (iv) are asfollows:
(i) Out of 12,576 applicants who appeared in the examination, in
all 1979 candidates obtained 35%marks in each law paper and 40% in
the aggregate as per Schedule-III.
(ii) In list (ii) the RPSC has pointed out that 396 candidates
were not qualified as per actual marksobtained 35% in each law
paper and 40% in the aggregate but have been declared qualified as
perscaled marks;
(iii) as per list (iii), 1306 general candidates were entitled
to be called for interview as per actualmarks, SC 131, ST- 42 and
OBC 500 candidates,
(iv) in list (iv), the RPSC has placed on record list of the
actual/scaled marks of the aforesaidcandidates in each law
paper.
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(46) Usually, the accepted practice of the RPSC is to call the
candidates in the ratio of 1:3 and in thisparticular case, the RPSC
has called 244 candidates for interview as per the scaled
marks.
(47) To answer Question No.(iv) with reference to RJS Rules,
1955 and violation of Article 14 of theConstitution of India, the
cut-off marks on the basis of raw marks and cut-off marks on the
basis ofscaled marks as well as increase or decrease of scaled
marks of the petitioners and other similarlysituated persons
vis-a-vis persons who were called for interview and subsequently
selected andappointed, can be divided in two categories i.e. (a)
the petitioners who were entitled to be called forinterview as per
raw marks but have not been called for interview and (b) even if
called forinterview, then could not be selected on account of
higher scaled marks of the persons selected andappointed. Before
making table of the aforesaid two categories, the cut off marks as
per raw marksand cut off marks as per scaled marks of the various
categories are also relevant which are asfollows:
Cut off marks as per raw marks for calling the candidates for
interview Category Cut off marksGeneral General Women SC General
Women ST General Women 120 all candidates OBC GeneralWomen Cut off
marks as per scaled marks for calling the candidates for interview
Category Cut offmarks General General Women SC General Women ST
General Women OBC General Women (48)On account of scaling, there is
increase of 5 cut off marks in the general category and
womencandidates; increase of 3 marks in the SC (General) and 7
marks in SC (women) whereas there isincrease of 8 marks in OBC
general and women candidates on account of scaling. Thus, it
appearsthat several candidates who were entitled to be called for
interview as per the cut off marks as perraw marks have not been
called for interview in all the categories except ST category on
account ofincrease in the cut off marks.
(49) In order to decide further the aforesaid controversy of
violation of Article 14 of the Constitutionof India, the scaling
formula adopted by the RPSC is to be considered in tabulation form
whichrender eligible candidates to be ineligible for interview and
even if interviewed and got higher rawmarks + interview, but not
selected and appointed on account of higher scaled marks along
withextreme variation.
(50) We accept ratio of 1:3 to be called for interview. For the
sake of convenience, and in order toexamine the issue of
irrationality and arbitrariness, the following Tables-1 to 6 are
being reproducedon the basis of the aforesaid record.
TABLE-1 PETITIONERS WHO WERE ENTITLED TO BE CALLED FOR INTERVIEW
AS PER RAWCUT OFF MARKS BUT HAVE NOT BEEN CALLED FOR INTERVIEW ON
ACCOUNT OF SCALEDCUT OFF MARKS S.No.
Name of petitioner with WP No., Roll No. and Category Total raw
marks Cut off marks as per rawmarks of the category Scaled Marks
Scaled cut off marks of respective category Increase or
DecreaseMrs.Sarita Noushad WP No.3942/2007 Roll No.709389 BC WE (-)
9 Ashutosh Kumawat WPNo.3942/2007 Roll No.101765 GE (+) 1 Rajan
Khatri WP No.3814/2007 Roll No.708713 GE (-) 10Miss Toshita Verma
WP No.4109/2007 Roll No.702675 BC WE (-) 9 Sarita Dhakad WP
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No.4115/2007 Roll No.711518 BC WE (+) 1 Miss Divya Singh WP
No.4227/2007 Roll No.706120 GEWE (-)1 TABLE-2 LIST OF THE
PETITIONERS WHO HAVE BEEN CALLED FOR INTERVIEWAND OBTAINED MORE RAW
MARKS PLUS INTERVIEW MARKS THAN THE SELECTED ANDAPPOINTED
CANDIDATES, LOWEST IN THE RESPECTIVE CATEGORY, AS PER THEIR
RAWMARKS PLUS INTERIVEW MARKS Name of the Petitioner with Roll No.
Category & WP No. Totalraw marks Interview marks Total Name of
the candidate selected and appointed, with Roll No. andCategory
Total raw marks Interview marks Total Ms Preeti Sharma Roll
No.711902 GE WE WPNo.418/2009 Girja Bhardwaj GE WE Roll No.704013
(M-35) Ramchand Gehlot Roll No.500877 GENG RG WP No.6852/2007
Mukesh Parnami Roll No.700348 SC WP No.417/2009 Prem SinghDhanwal
SC Roll No.706187 (M-68) Bhaskar Dagar Roll No.710828 SC WP No.
417/2009 NarendraMeena Roll No.500268 ST WP No.5457/20078 Brijendra
Rawat (ST) Roll No.500803 (M-67)Hemraj (ST) Roll No.100691 (M-77)
Ritu Meena (ST) WE Roll No.704340 (M-78) Dhanpat MaliRoll No.700726
BC WP No.5695/2007 Arvind Jangid (BC) Roll No.713202 (M-34) Lalit
PuriGoswami Roll No.301106 (BC) (R-20) Zafar Ahmed Qureshi (BC)
Roll No.101441 (M-41) TABLE-3EXAMPLES SHOWING THAT '0' MARK WAS
ALSO SCALED IN COMPULSORY PAPERSHAVING NO RELEVANCE AS PER
SCHEDULE-III TO BE CALLED FOR INTERVIEW S.No.
Name of the candidate(s) with Roll No. & Category Total raw
marks Marks increased after scalingVariati-on (+) Rajesh Kumar
Matolia Roll No.200165 GE 0 (English) Amit Srivastava RollNo.201019
GE 0 (English) Hemant Kumar Dhandey Roll No.300586 SC 0 (English)
Deepak KumarRoll No.701603 GE 0 (English) Rajendra Prasad Meena
Roll No.704216 ST LV 0 (English) RajendraKumar Roll No.704470 BC 0
(English) Bhanu Dev Sharma Roll No.706574 GE 0 (English) SheeshRam
Gothwal Roll No.709043 SC 0 (English) Meetha Lal Gujar Roll
No.713288 BC 0 (English) (51)The marks of the aforesaid candidates
have been increased by scaling in other subjects also whichmight
have resulted in making them qualified for interview. However, two
specific instances ofmaking such candidates who were not qualified
for interview as per raw marks but on account ofincrease in scaling
became qualified for interview in the aforesaid category, given by
the petitionersand recorded in the order sheet dated 29.9.2009 are
as under:
TABLE-4 Name & Roll No. with category Total raw marks Total
scaled marks Cut off marks as perraw marks of the category Cut off
marks as per scaled marks Variation/Deviation Dhirendra Singh(SC)
Roll No.701454 (+) 5 Rajendra Kumar Meena (ST) Roll No.704216 (+)
12 TABLE-5 SOME OFTHE EXTREME VARIATION CASES OF THE PERSONS WHO
HAVE OBTAINED HIGHERP O S I T I O N I N M E R I T O N A C C O U N T
O F S C A L I N G W H I C H H A S R E S U L T E D I NNON-SELECTION
OF MANY OTHER CANDIDATES ON ACCOUNT OF SCALING DOWN OFTHEIR MARKS
S.No.
Name of the candidate(s) with Roll No. & Category (S)
Indicates Selected (M) Indicates merit no. inthe select list (R)
indicates merit no.in reserve list Total raw marks Scaled Marks
Increase orDecrease Geeta Choudhary 300160 BC/WE (S/M-40) (+)19
Anita Tailor 500340 BC/WE (S/M-48)(+) 17 Asha Choudhary 706311
BC/WE (S/M-49) (+)16 Poonam Sharma 201523 GN/WE (S/M-33)(+) 18
Rakesh Ramawat 300174 BC (S/M-3) (+) 22 S.S.Shekhawat 704862 GE
(S/M-6) (+) 19Manoj Joshi 300388 GE(WE) (S/M-9) (+) 14 Ramdeo
Sandoo 301122 BC (S/M-10) (+) 20 ManishKumar 500456 BC (S/M-15) (+)
12 Satya Prakash Soni 711964 BC (S/M-18) (+) 12 Sunil Kumar
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Ojha 501204 GE (S/M-20) (+) 19 Yashwant Bhardwaj 701289 GE
(S/M-22) (+) 11 Deepak KumarSoni 710569 BC NG RG (S/M30) (+) 12
Abhilasha Sharma 501095 GE WE (S/M-31) (+) 12 PoonamSharma 201523
GenWE (S/M-33) (+) 16 Arvind Kumar Jangid 713202 BC (S/M-34) (+)
24Surendra Chaudhary 706669 BC (S/M-39) (+) 11 Zafar Ahmed 101441
BC (S/M-41) (+) 12 LaxmanRam Bishnoi 202598 BC RG (S/M-42) (+) 14
Arun Godara 705559 BC (S/M-43) (+) 12 PramodKumar Sharma 401292 GE
(R/3) (+) 15 Mahendra Singh 703303 BC (S/M-45) (+) 11 TABLE-6
LISTOF SELECTED AND APPOINTED PERSONS WHO FAILED TO OBTAIN MINIMUM
45% MARKSAS PER THE RAW MARKS PLUS INTERVIEW MARKS WHICH IS THE
REQUIREMENT OFRULE 19 OF THE RJS RULES,1955 i.e. 45% MARKS OUT OF
335 MARKS=150.75 OR SAY 151,AND THE SAME IS APPLICABLE TO RESERVED
CATEGORIES ALSO, THEREFORE THEYCOULD NOT HAVE BEEN SELECTED AND
APPOINTED BUT HAVE BEEN SELECTED ANDAPPOINTED ON ACCOUNT OF SCALED
MARKS S.No.
Name of the candidate(s) with Roll No.& Category with Merit
No. in the select list Total Scaledmarks + interview marks Total
Raw Marks + interview marks Difference of marks as a result
ofscaling Rashmi Arya (SC WE) Roll No.401201 (M-72) 145+17=162
129+17= 146 (+) 16 Hem Raj RollNo.100691 (ST) M-77 130+21=151
115+21= 136 (+) 15 Ritu Meena (ST) Roll No.704340 (M-78)133+18=151
128+18= 146 (+) 5 (52) There are joint writ petitions also,
therefore, there may be someof the petitioners who were entitled to
be called for interview as per the raw cut off marks and havenot
been called for interview, and further there might have been some
other candidates who hadlesser raw marks plus interview marks than
the petitioners, who have been called for interview andhave been
selected and appointed. The aforesaid complete/correct details of
some of the petitionershave not been made available.
(53) The marks obtained in the compulsory papers are having no
relevance for deciding theeligibility of a candidate for interview
for which 35% marks in each law paper and 40% in theaggregate are
to be seen but still, scaling has been done in regard to the marks
of compulsorysubjects. The RPSC has also ignored the fact that
there is no much scope of variation in the markingof Law Paper-I
and II considering the syllabus.
(54) Though the specific record called by this Court from the
RPSC is bulky, we have been able topoint out the aforesaid
instances with the assistance of counsel for both the parties as
per the saidrecord. There may be some other such instances of the
various categories indicated above.
(55) While considering extreme variation also in raw and scaled
marks, the Supreme Court in SanjaySingh (supra) observed that there
were candidates who actually secured zero marks have strangelybeen
assigned scaled marks ranging from 36 to 67 depending upon the
examiner, in whose pool,they fell. The scaling has equalised the
different high end marks of candidates, where the meanmarks is low.
The scaling has also equalised the different low end marks of
candidates, where themean marks is high. This leads to unequals
being treated as equals. That apart, low raw marks werefurther
lowered (or made into `0') and higher raw marks were further
increased due to scaling. Theparas 35 and 37 of Sanjay Singh
(supra) are relevant and the same are as under:
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35.We find from Table-II (furnished by the Commission) that the
answer scripts relating toLanguage Paper were distributed among 14
examiners. Several candidates whose papers wereevaluated by
examiners 2, 3, 4, 5, 6, 8, 13, & 14 have secured zero marks.
Evidently only those whodid not attempt any answer or had
absolutely no knowledge of either Hindi or English would havegot
zero marks. But such candidates who actually secured zero marks
have strangely been assignedscaled marks ranging from 36 to 67,
depending upon the examiner, in whose pool, they fell. We givebelow
scaled marks obtained by different candidates who secured zero
marks with reference to theexaminers. (emphasis supplied) Subject :
Language Examiner No. Raw marks of the candidateScaled 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 24.8100+(0-52.86 x20) = 67
31.75 100+(0-43.11 x 20) = 66 25.50 100+(0-54.77 x20) = 36 17.02
Butunfortunately in the same subject, candidates who secured 32 to
30 marks, assessed by ExaminerNo.10, got their marks reduced to 31
to 28 on scaling. (Mean being 80.93 and SD being 14.16).
Thedevastating effect of awarding such high scaled marks, that too
ranging from 36 to 67, to those whohave secured '0' need not be
stressed. In fact UPSC has clarified that whenever they follow
scalingprocedure, no scaling is applied to '0' marks. But the
Commission had not applied its mind to thisaspect when applying
'scaling'.
Para 37.The scaling has also equalized the different low end
marks of candidates, where the meanmarks is high. To give a
hypothetical example, if the mean marks is 95 and the standard
deviation is11, then all candidates securing 40 and below will be
awarded only '0'. To give a concrete example, inregard to Examiner
No. 7 in Law Paper-II, one candidate has secured 32. In respect of
thatexaminer, the mean marks is 94.4 and standard deviation is
11.48. By applying the scaling formula,the scaled marks of the said
candidate who secured 32 becomes '0'. Not only that. Scaled marks
ofall candidates who were given raw marks of 37 and less by that
examiner, becomes '0'. This leads tounequals being treated as
equals and candidates who secured marks in the lower ranges (from
thatexaminer) losing out to candidates who performed much worse but
were in the pool of otherexaminers.
(56) The aforesaid tabular forms Tables-1 to 6, of RJS
Examination, 2005 clearly reveal that unjustincrease and decrease
in the raw marks of the petitioners and selected candidates by way
of scalinghas further rendered the petitioners either ineligible
for interview or even if interviewed, they havenot been selected
and appointed, whereas candidates, who were not eligible for
interview as per rawmarks and their marks have been scaled up, as a
result of which they have been selected andappointed. The scaling
of marks results in irrational and arbitrary increase and decrease
of marksamongst the selected and appointed candidates and the
petitioners and the same is treatingunequals equally in the matter
of marking in direct recruitment, therefore, it is violative of
Articles14 and 16 of the Constitution of India. Therefore, Question
No.(iv) is answered in the affirmative.
Question No.(v) In case the aforesaid four questions are
answered in the affirmative, then whetherthe judgment of the
Supreme Court in Sanjay Singh and another V. U.P. Public Service
Commission,Allahabad and another (2007)3 SCC 720) will cover the
controversy raised in these writ petitionsand what relief can be
granted to the petitioners ?
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(57) In Sanjay Singh (supra), the Supreme Court while over
ruling its earlier decision in U.P.PublicService Commission
V.Subhash Chandra Dixit and others (2003) 12 SCC 701), has held in
paras 48,49, 50, 51, 52 and 53 that neither of the two assumptions
made therein can validly continue to applyto the present type of
examination and further the judgment of the Division Bench of this
Court inMahesh Kumar Khandelwal (supra) relates to moderation and
not scaling. Para 49 of Sanjay Singh(supra) is as under:
49. Learned counsel for the Commission contended that scaling
has been accepted as a standardmethod of evaluation in the
following decisions and therefore it should be approved :-
(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR
157], upheld by this Court byorder dated 11.3.1987 in SLP (C) No.
14000/1986.
(ii) Mahesh Kumar Khandelwal vs. State of Rajasthan [1994 (1)
Raj.LR 533] upheld by this Court byorder dated 22.1.1996 in SLP(c)
No. 15682-15684 of 1994. (emphasis supplied)
(iii) K. Channegowda vs. Karnataka Public Service Commission
[2005(12) SCC 688).
All the three cases related to moderation and not scaling. There
are, however, passing references toscaling as one of the methods to
achieve common standard of assessment. The fact that scaling is
astandard method of assessment, when a common base has to be found
for comparative assessmentof candidates taking examinations in
different optional subjects, is not in dispute. In fact
theCommission may continue to adopt the said system of scaling,
where a comparative assessment is tobe made of candidates having
option to take different subjects. The question is whether scaling,
inparticular, linear standard scaling system as adopted by the
Commission, is a suitable process toeliminate 'examiner
variability' when different examiners assess the answer scripts
relating to thesame subject. None of the three decisions is of any
assistance to approve the use of method of'scaling' used by the
Commission. (emphasis supplied) (58) As regards other issues, we
are of theview that the same are touching the selection process
from the very beginning, therefore, we leavethe same open for
decision at the appropriate stage in some other case.
(59) Although the formula adopted by the RPSC produced unjust,
unreasonable, irrational andarbitrary result, as held in answer to
Question No.(iv) but as the selection process was over in2007/early
2008 & the appointments have also been made and almost one year
and a half haspassed after the appointments, therefore, we do not
want to disturb the appointments already made.However, it is
admitted case of the parties that the direct recruitment pursuant
to the RJSExamination, 2008 is pending. The petitioners have
asserted that even after the advertisement of2008, the vacancies of
the posts of Civil Judge (Junior Division) are available and there
is no denialto the specific query of availability of the vacant
posts of Civil Judge (Junior Division) even after theadvertisement
issued in 2008. Otherwise also, recruitment in RJS has to be made
from time to timeas per the RJS Rules, 1955 therefore, the same is
on going process and there hardly remains anypoint of time when
there may not be vacancies.
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(60) Supreme Court in SLP (C) No.10539/2007 filed by Sarita
Noushad and another SLP (C)No.10631/2007 while making the further
appointments subject to the decision of the writ petitions,on
12.12.2008, requested this Court for early disposal of the writ
petition at an early date but thewrit petitions could not be
disposed of for one reason or the other. As held above, the
personsselected and appointed against the vacancies of the RJS
Examination, 2005 have worked for oneyear and a half, therefore, we
have not disturbed their appointments. But still, in the aforesaid
factsand circumstances of the present writ petitions, the issue
remains that most of the petitioners, whohave approached the Court
in time in 2007, either before interview or just after interview,
havesuffered on account of scaling which has already been declared
illegal while answering QuestionsNo.(i) to (iv) in the affirmative
and the delay in disposal of the writ petitions may not be allowed
tostand in their way for granting relief for all times to come and
simply on the ground that theadvertised vacancies have been filled
up even after obtaining more raw marks plus interview marksand some
of them have also been deprived of interview as per their raw marks
and cut off marksworked out on the basis of raw marks in the RJS
Examination, 2005. In order to save the petitionersfrom injustice
which has been caused on account of violation of RJS Rules, 1955
and violation ofArticles 14 and 16 of the Constitution of India, as
discussed in detail in the preceding paras,Question No.(v) is also
answered in the manner that Sanjay Singh (supra) is fully
applicable to thefacts and circumstances of the present cases.
(61) The ends of justice can only be met out if the petitioners'
cases are considered for futurevacancies as the same relief has
been granted by the Supreme Court in Sanjay Singh
(supra).Therefore, the writ petitions succeed and the same are
allowed as indicated below:
(i) RPSC is directed to prepare the list of the candidates of
RJS Examination,2005 as perSchedule-III of the RJS Rules,1955, to
be called for interview as per raw cut off marks for thepurpose of
ascertaining whether any of the petitioners was entitled to be
called for interview in theirrespective categories.
(ii) RPSC is further directed to prepare a list as per
Schedule-III of the RJS Rules, 1955, of RJSExamination,2005, of the
petitioners who have obtained more raw marks plus interview marks
thanthe selected and appointed candidates, in their respective
categories.
(iii) All the petitioners who were entitled for interview as per
Schedule-III in the ratio of 1:3 in theirrespective category as per
their raw marks considering the fact of cut off raw marks but have
notbeen called for interview, as per Relief No.(i), be now called
for interview along with the candidatesto be interviewed for the
examination of RJS 2008 and further, in case they obtain more
rawmarks+interview marks than the candidates of the merit list of
the RJS Examination,2005 as pertheir raw marks + interview marks,
then their cases may be considered for appointment againstfuture
vacancies and if found suitable, respondents may issue appropriate
orders before finalisingthe selections and appointment pursuant to
the RJS Examination, 2008.
(iv) The petitioners who have been interviewed but could not be
selected on account of scaling downtheir marks and scaling up the
marks of the selected and appointed persons as referred in
ReliefNo.(ii) and have further obtained more than 45 per cent raw
marks+interview marks in the
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aggregate higher than persons already selected/appointed as per
raw marks and interview marks ofRJS Examination, 2005 be considered
for appointment against future vacancies and in case they arefound
suitable, then, respondents may issue appropriate orders before
finalising the selections andappointment of RJS Examination,
2008;
(62) A copy of this order be placed on the files of all the
connected cases.
(Guman Singh) J. (Prem Shanker Asopa) J.
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