Civil Writ Jurisdiction Case No.3892 of 2011 In the matter of an application under Article 226 of the Constitution of India. 53rd To 55th Combined Competitive Examination Candidates Association through its President namely Pankaj Tiwari, son of Late Dr. T N Tiwary,Resident of House no.5, Road no.2 Extension, Rajvanshi Nagar, PS Shastri Nagar, Patna – 800023, Bihar .... .... Petitioner Versus 1. The State of Bihar through Chief Secretary,Govt. of Bihar, Patna 2. The Chairman, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna 3. The Bihar Public Service Commission through its Secretary, 15 Jawaharlal Nehru Marg, Bailey Road, Patna .... .... Respondent/s For the Petitioner : Mr. Kunal Kaushik, Advocate For the State of Bihar : Mr. Dinbandhu Singh, GP IX For the BPSC : Mr. Lalit Kishore, Senior Advocate : Mr. Sanjay Pandey, Advocate P R E S E N T HON’BLE MR. JUSTICE S.K.KATRIAR and HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH S K Katriar, J. This writ petition in the nature of a Public Interest Litigation has been preferred with the following prayers:- (i) For a declaration that the inconsistency in adopting Scaling/Moderation/Standardization of marks for selection process caused by the inaction of the Bihar Public Service Commission in framing Rules in this regard and selection of candidates without following the aforesaid methods to eliminate variations of marks (hereinafter referred to as `Commission’) is unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India. (ii) For order, direction or issuance of writ of Mandamus or any other appropriate writ for directing the respondents to frame Rule for adopting Scaling/Moderation/Standardization of marks for the 53rd to 55th Combined Competitive Examination to be conducted by the BPSC in 2 2011 especially in the light of the order passed by this Hon’ble Court in LPA no.630 of 2000 dated 23.04.01.” 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner claims to be an Association of the candidates for 53rd to 55th Competitive Combined Examination, and is represented by Pankaj Tiwary, its President, who is a citizen of India. The writ petition in substance is to bring about improvement and standardization in evaluation of answer books for the combined competitive examinations held by the Bihar Public Service Commission (hereinafter referred to as `Commission’), for appointment to different posts, in so far as descriptive answer books are concerned where the candidates have the option of selection of subjects, in contradistinction to objective answer books which are evaluated by the computer, or examinations where the candidates do not have the choice of selection of optional papers and all papers are compulsory. It is stated in the writ petition that the present method of evaluation of such descriptive answer books where the candidates have the choice of selection of optional papers needs improvement, and corrective measures have been suggested, namely, moderation of answer books and scaling of marks upwards or downwards obtained by candidates in subjects either abnormally on the higher side or on the lower side. We do not feel the necessity to state in detail the circumstances under which the two measures are required to be introduced as part of the evaluation process 3 by the Commission because the same have, with respect to a different examination, been exhaustively discussed by the Supreme Court in its judgment in the case of Sanjay Singh vs. U.P.PSC (2007) 3 SCC 720. 3. Learned counsel for the petitioner submits that the system of moderation of raw marks in the written papers obtained by candidates is not required to be applied in examinations where all the papers are compulsory for the candidates and there is no choice of selection of subjects, for example, the Judicial Service Examination. He submits in the same vein that the system of moderation of raw marks, and the system of scaling of marks, have to be applied with respect to the examinations where the candidates have the option to select some of the subjects. He submits that these two concepts are based on the latest researches and studies in the filed of education and selection processes to ensure level-playing field for the candidates. He relies on the following reported judgments:- (i) (2007) 3 SCC 720 (paragraphs -23 to 31, 33, 49, and 52) Sanjay Singh vs. U.P. Public Service Commission (ii) (2005) 12 SCC 688, K Channe Gowda vs. Karnataka Public Service Commission (iii) 1994(2) PLJR 414, Sanjay Kumar Vs. BPSC (iv) AIR 2004 SC 163, U.P. PSC v. S C Dixit He next submits that neither the system of moderation, nor the system of scaling of marks, is unknown to the Commission. It 4 has admitted in its counter affidavit that moderation is part of its selection process, may be with its imperfections. He relies on the judgment of a Division Bench of this Court of 23.4.2000 (Annexure -1), in LPA No. 630 of 2000, whereby the system of scaling of marks adopted by the Commission was challenged before this Court, and was upheld. He next submits that the Bihar Public Service Commission (Rules of Procedure) 1996, (hereinafter referred to as the `Rules’), neither provides for moderation nor scaling. He submits in the same vein that the stand taken in the counter affidavit as to the justification to adopt the system of scaling on the earlier occasion as a one- time measure, and refusal to continue it as part of the permanent system, is without any sound basis. He also submits that a writ of mandamus can be issued to frame Rules or policy decisions or instructions for such purpose. He relies on the judgment of a Division Bench of this Court in Sanjay Kumar vs. BPSC, 1994(2) PLJR 414 (paragraphs 46 and 47). 4. Learned counsel for respondent nos. 2 and 3 submits that a public interest litigation for service matters is not maintainable. He submits in the same vein that a public interest litigation cannot be converted into a private interest litigation. He relies on the judgment of the Supreme Court in the case of Neetu v. State of Punjab, (2007) 10 SCC 614 (paragraph- 5 at page 616). He next submits that the petitioner –Association is not competent to maintain this writ petition. He relies on the judgment of a learned Single Judge of 5 the Calcutta High Court in Director General Ordinance Factories Employees Association vs. Union of India, AIR 1969 Calcutta 149. He next submits that the Commission has framed Rules which are comprehensive, and the selection process conducted by it are being done in a most satisfactory manner. Relying on the counter affidavit, he submits that the Commission has by consistent practice over the years evolved a well-defined system to conduct its examinations which includes an element of moderation of answer books. He next submits that the Commission does not approve of the system of scaling, and the Court should refrain from issuing a writ of mandamus for such purpose. He relies on the judgment of the Supreme Court in H.P.Public Service Commission vs. Mukesh Thakur, 2010 (3) PLJR (SC) 127 (paragraph 14). He submits in the same vein that the system of scaling has been declared by the Supreme Court to be absurd in the case of Sanjay Singh vs. U.P. PSC (supra), which has been followed by a Division Bench of this Court in its order dated 14.11.2007 (Annexure – C), passed in CWJC No. 17177 of 2007. He also submits that the Court should not interfere in academic matters because it lacks the expertise to delve into such aspects. He relies on the judgment of the Supreme Court in Dr. Basavaiah vs. Dr. H L Ramesh, 2010 (3) PLJR 190 (paragraph 45). He also submits that the judgment of a Division Bench of this Court in LPA No. 630 of 2000, was meant to meet an extra-ordinary situation as a one- time measure. 6 5. Learned Government Pleader has supported the stand taken by learned counsel for respondent nos. 2 and 3. 6. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The stand taken by respondent nos. 2 and 3 in their counter affidavit, and ventilated during the course of submissions, is archaic and speaks of an out-moded system. It is apparent that the Commission is still functioning under the old system and refuses to take cognizance of the latest developments based on specialized researches and study papers on the subject. Our burden has been lightened by the elaborate judgment of the Supreme Court in Sanjay Singh vs. U.P. PSC (supra). Relying on the conclusions of a number of credible and well-researched papers, the Supreme Court has come to the conclusion that, in order to standardize evaluation of answer books, and ensure that no candidate gets abnormally high marks or abnormally low marks for the detailed circumstances discussed in the judgment, such bodies as the Commission must adopt moderation and scaling of marks as permanent fixture of evaluation of answer books. 7. Learned counsel for respondent nos. 2 and 3 have relied on the provisions of the Rules to demonstrate before us that it is comprehensive in nature and provides an effective system to conduct examinations. It is quite clear to us on a perusal of the same that it does not incorporate any provision for moderation and scaling of raw marks allotted to the 7 candidates. Respondent nos. 2 and 3 have, however, stated in their counter affidavit in detail about the system they have evolved for conduct of the examinations by practice over the years. According to the learned counsel of respondent nos. 2 and 3, it can be divided into three parts, namely, the pre- examination stage, the stage during the course of examination, and the stage after the examination. A few things are obvious from a perusal of the counter affidavit. This system has been evolved by practice without any foundation in Rules, or a defined policy decision in writing capable of being understood and interpreted by the common man, incapable of its uniform application by the Commission, and enforceability by courts. We have no manner of doubt in our minds that this system developed by oral practice is not capable of uniform application inspite of the best of intentions, and does not afford adequate protection against arbitrary or unjust action even though accompanied with the best of intention. 8. In so far as the system claimed to have been developed by the Commission over the years with respect to moderation is concerned, learned counsel for respondent nos.2 and 3 has particularly emphasized paragraphs 11(XV) and 11(XVI) of the counter affidavit, and are reproduced hereinbelow:- “ (xv) Discussion and Fixation of Modalities – Head Examiner/Head Examiners/Examiners of each and every subject/Paper are supplied with 8 the question paper of Subject/Paper concerned. They assemble in the Examination Hall/Halls of the Commission, discuss in minute detail on each and every aspect of the questions in marathon sessions with the examiners and decide the modalities and criteria regarding giving/awarding marks to each and every answer to the questions and parts thereof. “(xvi) Checking by Head Examiners – After the modalities and criteria are fixed, the answer books are provided to the examiners for evaluation. The Head Examiners are required to check at least 15% of the evaluated answer books. They usually check as many evaluated answer books as desirable in excess of 15%. They are also instructed to make it a point to compulsorily check all the answer books having 60% or more marks. In this way the uniformity in evaluation is ensured.” Counsel informed us at the Bar that the question-setters, head examiners, and examiners spread over different parts of the country, are called for marathon sessions to decide the modalities regarding awarding marks to each and every answer to the questions and parts thereof. In the absence of any material at all in the counter affidavit, we entertain serious doubts that all of them from different part of the country assemble in Patna for “marathon sessions”. In other words, the yard-stick prepared by the Commission for evaluation, and also for moderation of evaluation of answer books, does not inspire confidence, besides being incapable of uniform administration and enforceable by courts. 9. As stated hereinabove, the Commission has taken a firm stand in its counter affidavit, and fully supported during the course of oral submissions, that the Commission does not at all approve of the system of scaling. We outright 9 reject the submission on the strength of the authoritative pronouncement of the Supreme Court in Sanjay Singh vs. U.P. PSC (supra), which is based on intensive research works on the subject. The judgments of the Supreme Court bind everybody in this country in terms of Article 141 of the Constitution of India. 10. Learned counsel for respondent nos. 2 and 3 has strongly relied on the following observations of a Division Bench of this Court in CWJC No. 13177 of 2007:- “ So far the grievance of the petitioner that the Commission had not adopted the moderate system for evaluation of the marks is absolutely misconceived and the reliance on the judgment of the Supreme Court in the case of Sanjay Singh & Another (supra) is patently misplaced. In the case of Sanjay Singh & Another (supra), the Supreme Court found the scaling system adopted by the Commission to be absurd. Here, nothing has been pointed out to show that the evaluation system adopted by the Commission is anyway arbitrary.” These observations, particularly to the effect that “....the Supreme Court found the scaling system adopted by the Commission to be absurd...” ,is not based on accurate reading of the judgment of the Supreme Court in Sanjay Singh vs. U.P. PSC, and in fact has held to the contrary. It appears on a perusal of paragraphs 42 to 46 of the judgment of the Supreme Court that the observations with respect to anomalies/absurdities were demonstrable with reference to 2003 examination. This has to be read with the observations of the Supreme Court that the system of scaling will not apply to examinations where all the papers are compulsory for the 10 candidate who has no option to select any paper. The Supreme Court has, inter alia, stated in paragraph -33 of the judgment that “......the scaling formula is more suited and appropriate to find a common base and inter-se merit, where candidates take examination in different subjects.” 11. It has been the subject matter of diverse judgments of this Court that the mode and manner in which the selection process conducted by the Commission during past two to three decades have brought infamy to the Commission. Reference may be made to the judgment dt. 12.9.2008, by one of us sitting singly (S K Katriar, J.), in Sunil Kumar Sinha v. State of Bihar, 2009 (1) PLJR 744. That was a case where the Commission had conducted the limited written examination for promotion of the serving class III employees of the State Government to the cadre of gazetted officers. Apart from dealing with the faults in the selection process on the civil side, this Court had also monitored the criminal case which had been started by the Bihar Government which had led to the arrest of the then Commission’s Chairman, three of its members, the previous Chairman who was a lady, six officials and staff of the Commission, seventeen successful candidates who were employees of the Bihar Government, and another employee of the Bihar Government who was acting as a go- between. In other words, altogether 29 persons were arrested during the course of investigation. Altogether 109 persons of the Bihar Government including these arrested persons were 11 charge-sheeted. So much for the functioning of the Commission in the absence of Rules. 11.1) Reference may also be made to the judgment of a Division Bench of this Court in BPSC vs. Mukesh Kumar Singh, 2009(3) PLJR 878, to which one of us (S K Katriar, J.), was a party. The gross mistakes committed by the Commission in conducting the preliminary test for the Combined Competitive Examination for the 48th to 52nd batches are indicated in detail therein. It is another matter that this Court upheld the selection process for the diverse circumstances mentioned therein. 11.2) We are also reminded of the observations of a Division Bench of this Court in LPA No.630 of 2000, paragraph-10 of which is reproduced hereinbelow:- “10. Before we part with the records, we would like to observe that the general reputation of BPSC during the past 15 years or so has severely suffered in the eyes of the general public and is discernible from the cases brought to this Court or taken in appeal to the Supreme Court. BPSC should always remind itself that the Constitution of India has conferred on it the important duty and function of conducting examination for appointment to public services, which it must discharge sincerely and faithfully. Let its actions cause no suspicion in the minds of the people in general, and the candidates in particular. BPSC should not feel content by the position that most of its actions are upheld by the Court. Most of its actions are upheld by the Courts, more often than not, on account of technical reasons and the self- imposed limitations of this Court to go into the grievances raised before it and on the ground that conduct of the examinations is the job of an expert body like BPSC created under the Constitution of India.” 12 12. We must consider the issues canvassed on behalf of respondent nos. 2 and 3 which deal with the question of maintainability of this writ petition. He has submitted that a writ of mandamus should not be issued to statutory bodies to frame Rules. Learned counsel for the petitioner has rightly relied on the judgment of the Division Bench of this Court in Sanjay Kumar vs. BPSC (supra), where this Court had found fault with the manner in which the Commission had conducted the examination, and has consequently recorded the following direction:- “46. To say that I do not find the petitioners entitled to any relief is not to mean that I approve of the manner in which the Commission has been conducting examinations under Article 320 (2) of the Constitution. I have already found that the procedures adopted by the Commission for the conduct of examinations is quite unsatisfactory, unreasonable and contrary to law. Consequently I direct the Commission to evolve a procedure for the conduct of examinations which must be both reasonable and in conformity with law. The first step in this direction is to frame rules or guidelines or norms or instructions ensuring complete and full participation of all the Members of the Commission in the decision making process on basic issues and policy matters. “47. In the light of the above the Commission is directed to frame `rules’ ensuring that the entire body of the Commission fully participates in the decision making process on basic issues and policy matters. In framing its rules the Commission may seek guidance from similar rules framed by the Union Public Service Commission or the Public Service Commissions of the other States. “48. Such rules must be framed before the commencement of the 39th examination. The further conduct of the 38th examination must proceed with more and fuller involvement of all the Members of the Commission.” (Emphasis added) 13 There cannot be any manner of doubt that this Court in exercise of its discretionary, prerogative writ jurisdiction conferred by Article 226 of the Constitution is entitled to protect the fundamental rights of the citizens, and to ensure that all institutions created under the Constitution, or statutory bodies, discharge their duties effectively and uniformly with the avowed objects for which the body has been constituted. We have no manner of doubt that in the absence of appropriate Rules, the examinations conducted by the Commission are not being done very objectively and uniformly. It will bear repetition to state that the Commission has failed to live up to the changed times, is relying on old methods, and is refusing to take into account the latest developments thoroughly discussed by the Supreme Court in Sanjay Singh vs. U.P. PSC (supra). 12.1) Indeed a Division Bench of this Court in its order dated 23.4.2001, in LPA No.630 of 2000, has made the following observations:- “11. We would also like to state that the Commission would be well-advised to frame Rules for various stages of the selection process so that all its affairs are conducted strictly in conformity with the provisions thereunder, and the selection processes conducted by it are done with objectivity and transparency, eliminating chances of arbitrariness. Learned counsel for BPSC has taken us through the Rules and procedure framed by the Maharashtra Public Service Commission. In that view of the matter, the Commission would be well –advised to frame Rules on similar lines, hopefully within a period of six months.” (Emphasis added) We are indeed very sorry to record that the Commission has 14 acted with obduracy, has refused to take note of the latest developments indicated in the case of Sanjay Singh (supra), and has failed to frame Rules incorporating the system of moderation and scaling, and has without any justification opposed this writ petition. 12.2) For the reasons indicated hereinabove, we feel very unhappy with the system developed by the Commission orally and set out in detail in the Commission’s counter affidavit. This highlights the great necessity to frame detailed Rules incorporating the conclusions of up-to-date theories and research works including the system of moderation and scaling of marks. 13. Learned counsel for respondent nos. 2 and 3 has submitted that this Court should desist from interfering in academic matters because it lacks the expertise to deal with them. He relies on the judgment of the Supreme Court in H.P. PSC vs. Mukesh Thakur (supra). The judgment dealt with fundamentally different issues. That was a case where the Commission had assessed the inter-se merit of the candidates which was challenged before the High Court. The High Court itself re-evaluated the question papers and the answer sheets. The Supreme Court completely disapproved of the re- evaluation of the question papers and answer sheets done by the High Court. It is thus evident that the case dealt with fundamentally different factual position, wholly irrelevant in the present context. We are not making any attempt to re- 15 evaluate answer books, but trying to ascertain the necessity to frame Rules, and after incorporating the latest developments in the field. 13.1) The reliance placed by learned counsel for respondent nos. 2 and 3 on the judgment of the Supreme Court in Dr. Basavaiah (supra), is equally misplaced, which dealt with a comparable situation as in H.P. PSC vs. Mukesh Thakur (supra), and, therefore, not relevant in the present case. It is quite clear to us that the system of moderation, and the system of scaling of raw marks, have been fully approved and incorporated in the Rules of the Union Public Service Commission and various other Public Service Commissions. 14. Learned counsel for respondent nos. 2 and 3 has also submitted that a public interest litigation should not be converted into a private interest litigation, and the present writ petition is not maintainable at the instance of an unrecognized Association like the present one. The contention is stated only to be rejected. The contention completely fails to take notice of the developments in law emerging from the judgments of the Supreme Court in the recent past. The concept of Locus Standi has been substantially diluted by judgments of the Supreme Court, and also by legislation, for example, the Right to Information Act, wherein the concept of Locus Standi has been completely given up. Anybody can ask for any information in the public domain except those completely prohibited by Section 8 of the Act. Furthermore, 16 this writ