[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 388 of 2010 In [CASE NUMBER] FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] Appellant(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 [ENTITY] for the Respondent(s) No. 1 MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2 Page 1 of 20 [CASE NUMBER] CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 21/07/2014 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE [ENTITY]) By way of the present appeal, the appellant has challenged the judgement dated 16.12.2009 passed by learned Single Judge in [CASE NUMBER] whereby the petition was dismissed.
2. Learned counsel for the appellant Mr. [ENTITY] has contended that the original-petitioner herein was deprived of his legitimate right of being considered in the interview in view of method of scaling adopted by Gujarat Public Service Commission (" the GPSC" for short) which is not permissible under Examination Rules. He further contended that on 1.5.2006 and 26.6.2006 the GPSC issued advertisement for combined competitive examination for recruitment to 283 posts of Class-I and Class-II which were later on increased to 243 posts.
2.1 The petitioner and others appeared at the preliminary examination. The petitioner was declared successful and eligible to appear at the Main Examination. 2.2 Learned counsel Mr. [ENTITY] for the appellant has contended that the petitioner appeared at the Main Examination and performed well. The petitioner, though eligible and secured requisite marks, was deprived of his right of being considered in the interview on account of wrong method adopted by the GPSC and that is how the candidates, [CASE NUMBER] though eligible, were deprived of the Main Examination and the candidates, though not eligible, were called for the Main Examination. On making enquiry with the GPSC, it was found that the GPSC had applied wrong method of scaling of the marks and the result as prepared on the basis of scaled marks instead of on the basis of actual marks or raw marks given by the Examiners. He further contended that there was no provision for scaling of marks in the Examination Rules. 2.3 Learned advocate Mr. [ENTITY] for the appellant has taken us through the [ACT], particularly, [SECTION] and [SECTION] on pages 74 and 75 which read as under:
"[SECTION] - The names of the candidates shall be arranged by the Commission in the order of merit on the basis of aggregate marks finally awarded to each candidate in the Main Examination (written) and Interview test and in that order, the Commission shall recommend the qualified candidates for appointment to the extent of number of vacancies to be filled in:
Provided further that where the vacancies reserved for the candidates belonging to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward Class, (including Nomadic Tribes and Denotified Tribes) cannot be filled up on the basis of the qualifying aggregate marks fixed for general category, the Commission may relax the standard of aggregate marks to make up the deficiency in the reserved posts.
[SECTION] - The candidate, who is qualified for the interview test but fails to attend the interview test [CASE NUMBER] shall not be eligible for selection."
2.4 In view of [SECTION] and [SECTION], learned counsel for the appellant has contended that scaling is not permitted and the action of the GPSC is contrary to statutory Rules framed by the Government.
2.5 Learned advocate Mr. [ENTITY] for the appellant submitted that learned Single Judge has, while issuing directions, permitted the GPSC to consult the expert and rectify their action which has been done. He has strongly relied on the decision of the Hon'ble Apex Court in the case of [ENTITY] AND ANOTHER VS. U.P. PUBLIC SERVICE COMMISSION, ALLAHABAD & ANOTHER reported in (2007) 3 SCC 720, particularly, paragraph Nos. [SECTION] and 49 which read as under:
"para [SECTION] - The manner in which the list of candidates as per merit should be prepared is provided both in the [ACT] and the [ACT]. As the field is occupied by Role 20(3) and Note (i) of Appendix II of the [ACT], they will prevail over the general provision in [SECTION] of the [ACT].
Para 49 - Learned counsel for the Commission contended that scaling has been accepted as a standard method of evaluation in the following decisions and therefore it should be approved:
(i) [PRECEDENT] upheld by this Court by order dated 11.3.1987 in SLP (C) No. 14000 of 1986
(ii) [PRECEDENT] upheld by this Court by order dated 22.1.1996 in [CASE NUMBER] [CASE NUMBER]
(iii) [PRECEDENT] All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of scaling, where a comparative assessment is to be made of candidates having option to take different subjects.
The question is whether scaling, in particular, linear standard scaling system as adopted by the Commission, is a suitable process to eliminate "examiner variability" when different examiners assess the answer-scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of "scaling" used by the Commission."
2.6 He has further relied on paragraph Nos. 25, 26 and 45 of the said judgment which read as under:
"para 25 - Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. In the Judicial Service Examination, the candidates were required to take the examination in respect of all the five [CASE NUMBER] 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. Para 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 computerised scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted. 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 to only where a common merit list has to be prepared in regard to candidates who have taken examination in different subjects, in pursuance of an option given to them. Para 45 - The position regarding use of scaling method/system is that (i) only certain situations warrant adoption of scaling techniques, (ii) there are number of methods of statistical scaling, some simple and some complex, and each method or system has its merits and demerits and can be adopted only under certain conditions or making [CASE NUMBER] certain assumptions, (iii) scaling will be useful and effective only if the distribution of marks in the batch of answer-scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer-scripts sent to every other examiner, (iv) in the linear standard method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability,
(v) any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process and (vi) scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the `hawk-dove' effect(strict/liberal valuation)".
He has further relied on paragraph No. 53 of the said judgement which reads as under:
"para 53 - However, insofar 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [CASE NUMBER] are less than the marks of the selected candidates).
(b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. [For example, we find that petitioner [ENTITY], one of the petitioners in [CASE NUMBER] has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates (347, 337, 336, 383 and 335) under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment.] This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31.8.2005."
2.7 Learned advocate Mr. [ENTITY] for the appellant has contended that in view of the directions issued at paragraph No. 53 of the said judgement, the present petition deserves to be allowed.
2.8 While referring to issue No. (ii) in the judgement, the Hon'ble Supreme Court has discussed the said issue in paragraph Nos. 11 to 21, more particularly, the distinction [CASE NUMBER] which has been sought to be made regarding `marks finally awarded' and `marks obtained'. Learned advocate for the appellant has submitted that the distinction in the said paragraph No. 21 is uncalled for and contended that in answer to question No. (ii) which has been framed by the Hon'ble Supreme Court, the directions at paragraph No. 53 of the said judgement clearly prohibit that scaling is not permissible and contrary to the relevant Rules. In that view of the matter, he contended that directions are required to be issued in terms of paragraph No. 53 of the said judgement.
2.9 Learned advocate for the appellant has also relied on the judgement of the Hon'ble Apex Court in the case of [PRECEDENT], particularly, paragraph No. 16 which reads as under:
"Yet another circumstance is that the Government had not taken out the posts from the purview of the Board, but after the examinations were conducted under the 1955 Rules and after the results were announced, it exercised the power under the proviso to para 6 of 1970 notification and the posts were taken out from the purview thereof. Thereafter, the Selection Committee was constituted for selection of the candidates. The entire procedure is also obviously illegal."
2.10 In light of the above judgement, learned advocate for the appellant has contended that where the selection is based on illegality, it can be challenged by the petitioners and therefore, the petition deserves to be allowed. He has further relied on the decision of the Hon'ble Apex Court in the case of [PRECEDENT] JUDGMENT SERVICE COMMISSION & OTHERS reported in [PRECEDENT], more particularly, paragraph No. 21 at page No. 512 which reads as under:
"The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1.7.2001 and 1.7.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules."
2.11 Reliance is also placed on the decision of the Hon'ble Apex Court in the case of [PRECEDENT], paragraph No. [SECTION] which is reproduced hereinbelow:
"The Supreme Court in [PRECEDENT] has accepted Justice [ENTITY]'s Report that there should be no requirement of securing minimum marks in interview, thus, this ought to have been given effect to. The Court had issued directions to offer [CASE NUMBER] appointment to candidates who had secured requisite marks in aggregate in written examination as well as in interview, ignoring requirement of securing minimum marks in interview. In pursuance of those directions, Delhi High Court offered appointment to such candidates. Selection to the post involved herein has not been completed in any subsequent years to the selection process under challenge. Therefore, in the instant case, in absence of any statutory requirement of securing minimum marks in interview, the High Court ought to have followed the same principle."
2.12 Reliance is also placed on the decision in the case of [PRECEDENT] and the decision of the Hon'ble Apex Court in the case of [PRECEDENT], regarding the observations made by the subsequent Bench, particularly paragraph Nos. 6 and 7 which read as under:
"[ACT] - Art. 141 - Per incuriam judgement - Reiterated, judgement rendered in ignorance of earlier judgements of Benches of co- equal strength, would render the same per incuriam - such judgement cannot be elevated to the status of precedent."
2.13 Learned counsel for the appellants has relied on the Division Bench decision of the RAJASTHAN HIGH COURT in the case of [PRECEDENT] and allied matters rendered on 27.10.2009 wherein identical directions were issued in [CASE NUMBER] and other matters.
[CASE NUMBER] 2.14. In view of above, learned counsel for the appellant has contended that the petition deserves to be allowed. Lastly, he has further submitted that the appellant's case may be considered in the next recruitment and some observation in that regard may be made.
3. Learned advocate Mr. [ENTITY] appearing for the respondent has contended that the respondent Commission had firstly conducted the preliminary test by applying scaling method to raw marks scored by the candidates in optional subject. The appellant had cleared the preliminary test. He was to appear at the Main Examination comprising of three compulsory and two optional papers. Each paper of 200 marks with total 1000 marks were fixed as per the [ACT]. There were 28 optional subjects offered, from which, the candidate had to select two subjects being optional Paper-IV and Paper-V each of 200 morks. The result of main examination was declared after applying the scaling method. He further contended that the scaling method is applied on the basis of formula given by the experts. He further submitted in view of the observations made by the Hon'ble Apex Court in the case of [ENTITY] AND ANOTHER (supra), particularly paragraph No. 26, scaling is applied only in case of optional subjects. He relied on paragraph No. 24 of the said judgement. In that view of the matter, he contended that GPSC has followed the decision of learned Single Judge and has rectified the mistakes. He further contended that in view of the aforesaid decision of the Hon'ble Supreme Court, scaling is permissible in the case of optional subjects. He further submitted that object of applying scaling was to bring all the candidates opting optional subjects to a common score. The [CASE NUMBER] scaling has been applied uniformly in all the optional subjects without any deviation. He has relied on the following decisions:
1. [PRECEDENT], particularly paragraph Nos. 35 and 36 which read as under:
"Service Law - Recruitment process - Challenge to - Estoppel and acquiescence- Held, a candidate who had subjected himself to a faulty selection process could not question it later on. Besides, Supreme Court also not inclined to interfere in exercise of its writ jurisdiction under [SECTION]"
2. [PRECEDENT], para 59:
"Recruitment process challenged as irregular - Held, validity of recruitment could not be judged on the basis of microscopic details. It was also not proper to get sample survey of successful/unsuccessful candidates done through judicial officers, and the Court thus assuming an investigatory role. Court has to decide on the basis of pleadings of the parties. Unsuccessful candidates, after participating in the selection process, could not indulge in a roving enquiry."
3. [ENTITY] VS.
[ENTITY] AND OTHERS reported in [PRECEDENT]:
"Held - a procedure evolved for laying down the mode and the manner for consideration of a right such as the right under [SECTION], that is, a right only to be considered for appointment, can be interfered with only when it is arbitrary, discriminatory or wholly unfair. So also, how PSC would judge the merit of the candidates is its [CASE NUMBER] function. Unless the procedure adopted by PSC is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith."
4. [PRECEDENT], particularly, paragraph Nos. 23 and 24, relevant portion is reproduced as under:
"23 The scaling is necessary because the marks of all examiners of a single subject have brought to a common standard and similarly all examination marks in different optional subjects should also be scaled to the same standard. Scaling is recognised as a most important change which should be introduced into the present examination system because it does not involve any change in the traditional type of setting of questions in an examination nor does it require re-training of examiners nor any fresh or special instructions are required to be issued to students. Scaling requires only an administrative decision. The simplest method is what is known as converting raw to scaled marks. Shortly described this method requires first to decide what the highest scaled marks should be and what the lowest scaled marks should be and then the highest raw mark is set equal to the highest scaled mark and lowest mark to the lowest scaled mark
24. It is no doubt true that the Commission now requires to scrupulously implement the recommendations made by the Kothari Commission for updating the method particularly of moderation and one of the topic which observes careful examination by the Commission is [CASE NUMBER] about scaling of marks for different papers by adopting appropriate statistical techniques."
5. [ENTITY] & ANOTHER VS. U.P. PUBLIC SERVICE COMMISSION reported in (2007) 3 SCC 720, particularly, paragraph No. 25 which reads as under:
"25. [ENTITY] and [ENTITY] in their publication Research on Examinations in India have tried to explain and define scaling. We may usefully borrow the same. A degree "Farhenheit" 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 in Fahrenheit scale. Similarly, when marks are assigned to answer scripts in different papers, say by Examiner "A" in Geometry and Examiner "B" in History, the meaning or value of the "marks" is different. Scaling is the process which beings the marks awarded by Examiner "A" in regard to Geometry scale and marks awarded by Examiner "B" in regard to history scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different scales adopted in different subjects by different examiners onto a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects are converted to a "score" on a common scale by applying a statistical formula. The "raw marks" when converted to a common scale are known as the "scaled marks". Scaling process, whereby raw marks in different subjects are adjusted [CASE NUMBER] to a common scale, is a recognised method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination."
6. [ENTITY] ETC. VS. STATE OF BIHAR & OTHERS reported in 2014 AIR SCW 2968, particularly, paragraph No. 14.
7. [PRECEDENT], paragraph No. 24 which reads as under:
"para 24 - Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination."
8. [PRECEDENT], particularly, paragraph No. 13 which reads as under:
"We have considered the respective arguments and scanned the voluminous papers produced by the petitioners. In our view, the High Court did not commit any error by non-suiting the petitioners on the ground of non-impleadment of the selected [CASE NUMBER] candidates as parties to the original applications and the writ petitions. If the methodology of moderation adopted by the Commission is faulted, the entire selection will have to be quashed and that is not possible without giving opportunity of hearing to those who have been selected and appointed in different cadres."
3.1 In that view of the matter, learned advocate for the respondent has submitted that the appeal is required to be dismissed.
4. We have heard learned advocate Mr. [ENTITY] appearing for the appellants and learned advocate Mr. [ENTITY] appearing for the respondent at great length. We have considered the judgements cited by both the sides. The first contention so far as learned Single Judge has committed error in issuing directions is concerned, in view of the observations made by the Hon'ble Supreme Court in paragraph No. 26 of the judgement in the case of [ENTITY] AND ANOTHER (supra), we are of the considered opinion that learned Single Judge has not committed any error in issuing the directions. Even in the said judgement the issue as sought to be raised by learned advocate for the appellant regarding scaling of marks is contrary to the relevant Rules has been discussed by the Apex Court in paragraph Nos. 11 to 21 and the Apex Court has observed that scaling is not permissible nonetheless in view of the observations made at paragraph No. 53 of the said judgement, we are of the opinion that in case of optional subject, more particularly when analogy is applied as per paragraph No. 24 of the said judgement, we are of the considered opinion that learned Single Judge has taken correction decision and rightly issued the directions. We, [CASE NUMBER] therefore, see no reason to interfere with the judgement of learned Single Judge.
4.1 Learned advocate Mr. [ENTITY] for the appellants has placed heavy reliance on the decision of the Hon'ble Apex Court in the case of [ENTITY] AND ANOTHER (supra) to contend that the Hon'ble Supreme Court has not approved the method of scaling in awarding marks. Reliance on the judgement of [ENTITY]'s case (supra) is misplaced in the facts of the present case. We have to bear in mind that the Hon'ble Supreme Court was considering the question of adoption of method of scaling in competitive examination in which all subjects to be taken by the candidates were compulsory subjects. Therefore, the Hon'ble Supreme Court has not approved adoption of method of scaling in awarding marks. In this very judgement, the Hon'ble Supreme Court has held that method of scaling for awarding marks is proper method if marks are to be awarded in optional subjects. Therefore, the Hon'ble Apex Court has not disapproved the scaling method in both compulsory and optional subjects. In the facts on hand, the undisputed fact is that the respondents had adopted method of scaling in awarding marks in optional subjects alone. This method was not adopted so far as compulsory subjects were concerned. Therefore, the judgement in [ENTITY]'s case has no relevance and application in the present case.
4.2 The appellants having participated in the examination are not entitled to challenge the same in view of the decision of the Hon'ble Apex Court in the case of [PRECEDENT]. Consistent view is taken by the Apex Court in the case of [PRECEDENT] and [ENTITY] VS. STATE OF BIHAR & ORS. reported in 2014 AIR SCW 2968, particularly, paragraph No. 14 which reads as under:
"para 14 - In this context, we may quote a passage from [PRECEDENT] with profit:
`It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash [ENTITY] V. Akhilesh Kumar [ENTITY] (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
4.3 In view of above decisions of the Apex Court, we are, therefore, of the opinion that having participated in the examination, it will not be appropriate for the appellants to challenge the same.
4.4 The appellants have not impleaded all the successful candidates who have been selected and appointed in the petition as necessary parties. Therefore, in view of the decision in the case of [ENTITY] (supra) it will not be [CASE NUMBER] appropriate for this Court to entertain the appeal. 4.5 So far as the point that the appellants' case may be considered in the next recruitment is concerned, in our view, if such direction is given it amounts to creating of new posts. Majority of the petitioners would have now become age barred.
5. In view of above, we are of the opinion that learned Single Judge has not committed any error in partly allowing the petition and no interference is warranted with the same. The appeal is devoid of any merit and the same deserves to be dismissed. Accordingly, the appeal stands dismissed.
([ENTITY], J.) ([ENTITY],J) (pkn)