1 RJS Exam-2005 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER (1) D.B.CIVIL WRIT PETITION NO.3942/2007 Sarita Noushad Versus R.P.S.C. and others (2) D.B.CIVIL WRIT PETITION NO.3726/2007 Himanshu Agrawal and others Versus R.P.S.C. and others (3) D.B.CIVIL WRIT PETITION NO.3814/2007 Rajat Khatri Versus R.P.S.C. and others (4) D.B.CIVIL WRIT PETITION NO.4109/2007 Miss Toshita Verma Versus R.P.S.C. and others (5) D.B.CIVIL WRIT PETITION NO.4115/2007 Sunil Verma Versus R.P.S.C. and others (6) D.B.CIVIL WRIT PETITION NO.4167/2007 Balveer Singh Jat and others Versus R.P.S.C. and others (7) D.B.CIVIL WRIT PETITION NO.4227/2007 Miss Divya Singh Versus R.P.S.C. and others (8) D.B.CIVIL WRIT PETITION NO.4384/2007 Kapil Gupta Versus R.P.S.C. and others (9) D.B.CIVIL WRIT PETITION NO.5288/2007 Hari Singh Meena Versus R.P.S.C. and others (10) D.B.CIVIL WRIT PETITION NO.5457/2007 Narendra Meena Versus R.P.S.C. and others (11) D.B.CIVIL WRIT PETITION NO.5618/2007 Munesh Chand Yadav Versus R.P.S.C. and others (12) D.B.CIVIL WRIT PETITION NO.5695/2007 Dhanpat Mali 2 RJS Exam-2005 Versus R.P.S.C. and others (13) D.B.CIVIL WRIT PETITION NO.6283/2007 Suman Paliwal Versus R.P.S.C. and others (14) D.B.CIVIL WRIT PETITION NO.6852/2007 Ramchand Gehlot Versus R.P.S.C. and others (15) D.B.CIVIL WRIT PETITION NO.4350/2008 Pooja Versus R.P.S.C. and others (16) D.B.CIVIL WRIT PETITION NO.417/2009 Mukesh Parnami and others Versus R.P.S.C. and others (17) D.B.CIVIL WRIT PETITION NO.418/2009 Ms.Preeti Sharma Versus R.P.S.C. and others (18) D.B.CIVIL WRIT PETITION NO.4343/2007 Ravindra Kumar Sharma & another Versus R.P.S.C. and another DATE OF ORDER --- October 27,2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA HON'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 the marks in written examination of Rajasthan Judicial Service, 2005 (RJS, 2005) are involved in the matter, all the cases were heard together and are being decided together by this common judgment. 3 RJS Exam-2005 (2) The facts of CWP No.3942/2007 Sarita Noushad V.Rajasthan Public Service Commission and others are taken as the leading facts. (3) On 19.11.2005, 85 posts of Civil Judge (Junior Division) and Judicial Magistrate under the Rajasthan Judicial Service Rules, 1955 (hereinafter referred to as `the RJS Rules, 1955') for general as well as reserved category were advertised which was referred as `RJS Examination,2005'. The last date for submission of the application forms was 9.1.2006 and the details of the categories of the posts, as per the requisition, are as under: S.No . GENERAL GEN WOMEN S.C. GEN WOMEN S.T. GEN WOMEN OBC GEN WOMEN TOTAL 1 - - 09 02 11 05 - - 27 2 24 06 08 01 06 01 10 02 58 TOTAL 85 (4) Rajasthan Public Service Commission (RPSC) received 26,500 application forms including the application forms of the petitioners. Out of the 26,500 applicants, 12,576 applicants appeared in the written examination and after scaling, 244 candidates were called for interview and subsequently, 78+9, in all 87, candidates have been selected and appointed. (5) The interviews were held in the month of June, 2007 and the writ petition was filed by Sarita Noushad on 19.5.2007 challenging the adoption of scaling formula in R.J.S. and further seeking direction to call her for interview on the basis of actual marks `176' awarded to her out of 300 4 RJS Exam-2005 marks which were scaled down to `167', with the further relief of preparing fresh merit list. Interim relief was 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 the petitioner while considering the fact that Sarita Noushad was one of the women candidates for two seats 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 reasons indicated in the interim order dated 31.5.2007 passed in another aforesaid CWP No.3726/2007 Himanshu 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 Sarita Noushad, SLP(C) No.10539/2007 was filed and the same was disposed of on 12.12.2008 along with another SLP(C) No.10631/2007 and it was directed that any further appointment made would be subject 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 High Court 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 to the RJS Rules, 1955 wherein the scheme of examination is specifically prescribed 5 RJS Exam-2005 in Schedule-III appended thereto and referred in Rule 15 of the RJS Rules, 1955. According to Schedule-III, a candidate is required to obtain 35 percent marks in each of the law papers and 40 percent marks in the aggregate, to be called for interview. Further, as per the said Schedule-III, there are two law papers – Paper-I and Paper-II carrying 100 marks each; the Language(i) Paper I Hindi Essary carries 50 marks and Language(ii) Paper-II English Essay carries 50 marks and for Viva Voce 35 marks are provided. Thus, for the written examination 300 marks and for viva voce 35 marks are provided. It is further stated in the writ petition that a candidate who failed to obtain minimum of 45 percent marks in the aggregate, both of written and oral examination, is not entitled to be recommended by the RPSC but the petitioner, who obtained `176' raw marks out of 300 marks as per Schedule-III was entitled to be called for interview even as per the ratio 1 : 3 fixed by the RPSC for the candidates to 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 of scaling formula regarding some of the candidates who have obtained less raw marks which have been scaled up and they have been called for interview subsequently selected and appointed whereas the petitioners who were entitled to be called for interview as per Schedule-III were either not called for interview and even if called for interview, were not selected and appointed 6 RJS Exam-2005 despite having more raw marks plus marks of interview on account of applying scaling formula, therefore, by adopting the scaling formula, the RPSC has treated un-equals equally and the same has resulted in violation of Article 14 of the Constitution of India. (10) It has also been stated in the writ petition by Sarita Noushad that in her case, reduction of one mark 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 letter dated 11.9.2007 stating therein that the RPSC has never sought consent/consultation for scaling procedure 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 contain any scaling formula nor there is any statutory rules framed by the authorities concerned under Article 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 of moderation, normalisation and scaling is an integral part of evaluation and finalisation of result of the examination and further, the RPSC has been uniformly applying the said scaling formula in all the examinations where large number of candidates appear, in order to remove deviation of the marking of the hard 7 RJS Exam-2005 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 by the Division Bench of this Court in Mahesh Kumar Khandelwal and 16 others V. State of Rajasthan and others (1995(2) WLC (Raj.) 223). (14) While deciding Application No.19849 dated 29.5.2009, vide order dated 1.9.2009, this Court directed the RPSC to produce the entire original record. Since entire original record was not produced by the RPSC, therefore, vide order dated 15.9.2009, the RPSC was directed to furnish the following 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 after applying the formula of scaling obtained minimum 35% marks in each law paper and 40% marks in the aggregate declared passed. (iii) List of candidates who as per the actual marks were entitled to be called for interview and further, list of the candidates who were not entitled to be called for interview as per actual marks but have been called for interview by applying the scaling formula. (iv) The actual marks of the aforesaid candidates in each paper prescribed in Schedule-III and scaled 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 as per actual marks 8 RJS Exam-2005 and scaled marks have been produced by the RPSC and inspection of the same was allowed to the respective petitioners. After inspection of the record, most of the petitioners have filed affidavit(s) to demonstrate unjust, unreasonable and arbitrary result which makes the scaling 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 scheme of examination in Schedule-III appended thereto and as referred in Rule 15 and further, that the names 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 the scaling formula and the administrative formula can be only to supplement and not supplant the RJS Rules,1955. It is further submitted that the RJS Rules, 1955 are pari materia with the U.P. Judicial Service Rules, 2001 wherein the U.P.Public Service Commission was statutorily authorised to prescribe the formula under proviso to Rule 51 of the U.P.Public Service Commission (Procedure and 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 much more stronger than Sanjay Singh (supra) inasmuch as there is no statutory 9 RJS Exam-2005 authority vested with the RPSC to prescribe such a scaling formula. It is also submitted that adoption of the administrative scaling formula without consent and consultation of the High Court is wholly beyond the competence of the Commission and further resulted in unjust, unreasonable, irrational, arbitrary increase and decrease of the marks to the detriment of the petitioners and similarly situated persons vis-a-vis persons who were called for interview and subsequently, selected and appointed. The said arbitrary increase of marks in case of the selected and appointed persons and decrease of marks in case of petitioners and other similarly situated persons is irrational and arbitrary, therefore, the same 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 was M+[xi-x]Q/Qi and last part of the said scaling formula i.e. Q/Qi is not applicable where there are no different optional subjects and on account of adopting the aforesaid scaling formula, the petitioners have not been called for interview whereas as per the actual marks, they were entitled to be interviewed. Other counsel have also raised the grievance that on account of scaling, the petitioners have not been selected even after they have been interviewed and having more raw and marks of interview. (18) Lastly, counsel for the petitioners raised the argument regarding adoption of scaling formula and moderation simultaneously, which is impermissible and scaling of marks in 10 RJS Exam-2005 compulsory papers have 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 Service Rules, 2001 is different from the RJS Rules, 1955 and the formula is also different which has been adopted objectively and uniformally to moderate the deviation of the higher marking by the liberal examiner and hard marking by the hard examiner and placed reliance on a Division Bench judgment of this Court in Mahesh Kumar Khandelwal V. State (supra) which was upheld by the Supreme 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 on 6.10.2009, this Court passed the following order: “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 have been framed in exercise of powers conferred by Article 234 read with Article 238 and proviso to Article 309 of the Constitution of India and which prescribe specific scheme of examination under Rule 15 read with Schedule-III and Rule 19 of the Rules of 1955, will exclude the scheme of examination and marking by the R.P.S.C. and further consultation with the High Court is necessary even 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 materia with the U.P.Judicial Service Rules, 2005 ? (Correct year 2001) (iii) Whether the administrative scaling formula adopted by the Rajasthan Public Service Commission is not applicable to the Civil Judge (Junior Division)cum Judicial Magistrate Examination,2005 which was to be conducted as envisaged under Rule 15 read with 11 RJS Exam-2005 Schedule-III and 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 arbitrary increase and decrease of marks to the detriment of the petitioners and similarly situated persons vis-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 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 petitions and what relief can be granted to the petitioners ? Counsel for the respective petitioners may file affidavit(s) on 08th October, 2009 and counsel for the 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 photo stat copy of this order be placed on the files of connected cases – CWP No.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, 417/2009 and 418/2009.” (21) On 15.10.2009, after hearing both the sides on the aforesaid questions and affidavits filed by the petitioners, the judgment was reserved. (22) We have gone through record of the writ petitions, the record produced by the RPSC and the affidavits filed by the petitioners and have further considered the rival submissions of counsel for the parties and examined the same with reference to the RJS Rules, 1955, violation of Articles 14 and 16 of the Constitution of India and applicability of the judgment of the Supreme Court in Sanjay 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 12 RJS Exam-2005 of the Constitution 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, after consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan. As regards the procedure for framing of Rules and amendment, there is no dispute that usually the High Court initiates the process and the Governor, after consultation with the RPSC, has authority to promulgate the new Rules or amend the existing Rules. Relevant Rules 7, 14, 15 along with 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 the result 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 such intervals as the Governor may, in consultation with the Court, from time to time determine, and shall be conducted by the Commission at such time and at such dates as it may notify.” (emphasis supplied) Rule-15 “15.Syllabus.- The syllabus and the rules relating to the competitive examination shall be as in Schedule-III: Provided that they may be amended by the Governor from time to time in consultation with the Commission and the Court.” (emphasis supplied) Schedule-III “Syllabus for competitive examination for recruitment to the Rajasthan Judicial Service A. Competitive Examination for recruitment to the Rajasthan Judicial Service shall consist of - 13 RJS Exam-2005 (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 marks shown against each: Subject Marks 1. Law Paper-I 100 2. Law Paper-II 100 3. Language(i) Paper I Hindi Essay 50 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 and procedure 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 and procedure 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 be permitted 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 received the Commission shall call for interview such of them as have obtained a minimum of 35 percent marks in each of the law papers and 40 percent marks in the aggregate. (emphasis supplied) In interviewing a candidate, the suitability for employment to the Judicial Service shall be tested with reference to his record at the School, College and University and his character, personality address and physique. The questions which may be put up to him maya be of a general nature and will not necessarily be academic or legal. The candidate will also be put questions to test his general knowledge including knowledge of current affairs and present day problems. The marks so awarded shall be added to the marks 14 RJS Exam-2005 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 of the candidates recommended by them for direct recruitment in order of their proficiency as disclosed by their aggregate marks. If two or more of such candidates obtain equal marks in the aggregate the Commission shall arrange them in order of merit on the basis of their general suitability for service: (emphasis supplied) Provided that the Commission shall not recommend any candidate who has failed to obtain a minimum of 45% marks in the aggregate both of Written and Oral examinations: (emphasis supplied) Provided further that while selecting candidates for the vacancies so advertised, the Commission may (i) if intimation of additional requirement is sent to the Commission before the selection and (ii) if suitable persons are available, keep on their reserve list more candidates whose number shall not exceed 50% of the advertised vacancies, the names of such candidates may be recommended on requisition to the appointing authorities within six months 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 a reference for holding the competitive examination for recruitment to the service to be conducted by the 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 examination shall be as in 15 RJS Exam-2005 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 competitive examination has been divided in Part-A and B. Part-A is further divided in part (a) a written examination in the subject hereinafter mentioned and part (b) an interview to test the general knowledge of the candidate and his fitness for appointment. In Part-B, it has also been mentioned that after the marks obtained by the candidates in written test have been received, the Commission shall call for interview such of them as have obtained a minimum of 35 percent marks in each of the law papers and 40 percent marks in the aggregate. (25) As stated above, there is no dispute that for the procedure for framing of Rules and amendment, usually the High Court initiates the process of framing of RJS Rules, 1955/amendment or course of examination and the Government, after consultation with the High Court, sends a requisition to the Commission for holding the examination. Thus, the RPSC is the examining body and has a right to prepare the list of candidates recommended by it for direct recruitment in order of their proficiency, as disclosed by their aggregate marks as per Rule 19, which further provides that the RPSC shall not recommend any candidate who failed to obtain 45 percent marks in the aggregate for all categories i.e. general as well as reserved category, of both written and oral examination. 16 RJS Exam-2005 (26) Neither scaling formula prescribed in RJS Rules, 1955 nor the procedure for amendment was followed 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) of Appendix-II of the Rules of 2001 with reference to the U.P.Public Service Commission (Procedure and Conduct of Business) Rules, 1976 have been examined in Para 11.1 and 11.2 to paras 22. The language of the said Rules is as follows: Rule 16 "16. Competitive Examination.-The examination may be conducted at such time and on such dates 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 in the Syllabus prescribed under rule 19, unless the same is otherwise modified by the Governor in consultation 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 as given in the Appendix II, provided that the syllabus and rules may be amended by the Governor in consultation with the Commission and Court." (emphasis supplied) 17 RJS