1 IN THE HIGH COURT OF JUDICATURE OF RAJASTHAN AT JAIPUR BENCH, JAIPUR :: ORDER :: 1. D.B. CIVIL WRIT PETITION NO.12924/2009 Jai Singh & Ors. Vs. State of Rajasthan & Anr. 2. D.B. CIVIL WRIT PETITION NO.13479/2009 Bhavnesh Kumar & Ors. Vs. State of Rajasthan & Anr. 3. D.B. CIVIL WRIT PETITION NO.14221/2009 Nopa Ram & Ors. Vs. State of Rajasthan & Anr. 4. D.B. CIVIL WRIT PETITION NO.14263/2009 Narendra Kumar Vs. State of Rajasthan & Anr. 5. D.B. CIVIL WRIT PETITION NO.14388/2009 Vinod Kumar Gupta & Anr. Vs. State of Rajasthan & Anr. 6. D.B. CIVIL WRIT PETITION NO.15475/2009 Dinesh Kumar Sharma & Ors. Vs. State of Rajasthan & Anr. 7. D.B. CIVIL WRIT PETITION NO.1735/2010 Shakti Singh Hapawat & Ors. Vs. State of Rajasthan & Anr. Date of Order : 21st December, 2010 P R E S E N T HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sanjeev Prakash Sharma, Mr. Ashok Gaur, Mr. Rakesh Sharma, Ms.Shefali Sharma, for the petitioners. Mr. S.N. Kumawat, Additional Advocate General, Mr. Alok Sharma, for the respondents. Mr. R.N. Mathur, Mr. Rajendra Soni, for the intervenors. 2 1. In these writ petitions a common question has been raised as to whether the Rajasthan Public Service Commission could have resorted to the method of scaling of the marks in Combined Competitive Examination for State and Subordinate Service, 2007 (hereinafter referred to as 'the Combined Competitive Examination, 2007') which has been held under the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1999 (hereinafter referred to as 'the Rules of 1999')? 2. On 1.6.2007, advertisement was issued for 155 posts of seven State Services and 526 posts of Subordinate Services. Posts have been increased subsequently to 713 in total. On 23.12.2007, preliminary examination was conducted in which approximately 3 lacs candidates appeared. Result of the preliminary examination was declared on 13.3.2008. After declaration of the result, 15 times to the number of vacancies i.e.11,726 candidates were allowed to appear in the main examination. 3. It is not in dispute that there were 37 optional subjects and 4 compulsory papers. There were 74 question papers in optional subjects and 4 compulsory papers. Thus, there were 78 papers in total. From 30.7.2008 to 25.8.2008, the main examination was conducted in the aforesaid subjects. Before declaration of the final result on 17.3.2009, the Commission held meeting of various experts whether it was proper to apply the scaling system. Experts 3 had reviewed the method of scaling of score/marks obtained by examinees and discussed Ad longtum as also perused the proceedings of Standing Committee held on 2.2.2009 and resolved to implement the scaling method to remove variation in examiners as well as subjects. Subject-wise scaling has been resorted to in the optional subjects, whereas in four compulsory papers and 33 optional subjects only examiner-wise scaling has been adopted. There were 385 examiners in all. After scaling, result of the main examination was declared and 2679 candidates were called for interview. The excess number of candidates were called for interview to bring Other Backward Classes (OBC) candidates at par with the General Category candidates as per the decision of this Court in Bhawani Singh Kaviya & Ors. Vs. State of Rajasthan & Anr.(SB Civil Writ Petition No.2307/2008 decided on 13.5.2008. In the main examination, last cut-off marks of the OBC was more than the General Category, hence to bring the candidates of OBC Category at par with the General Category, those OBC candidates who had obtained the marks equivalent to cut-off marks of General Category candidates were also called for interview. 4. With effect from 1.6.2009 to 9.9.2009, interviews of 2678 candidates was conducted. Thereafter, final result was declared on 9.9.2009. Names were recommended to the State Government, as per choice, on 20.10.2009. 5. The petitioners have canvassed that one Ms.Mamta Tiwari was at rank No.1 with raw marks 849 and on scaling, her marks 4 were reduced by 15. Thus, by applying the method of scaling she has been placed at Serial No.9 in the merit. Another shocking example is of a candidate who secured 838 raw marks and was 3rd in ranking as per raw marks but her marks were reduced by 71 and placed at general ranking at No.194. Ranking of a person as per raw marks at No.13 has been reduced to 283 after scaling. A person who had 52 ranking on the basis of raw marks, after scaling was placed at No.5 and so on. Thus, absurd results have occurred due to the application of scaling method. Petitioners have submitted certain data in the petition indicating as to how scaling of marks caused anomalous results. It is also averred that in the case of one Ms.Sunita Meena, who is perhaps the relative of Shri H.L. Meena, Member, Rajasthan Public Service Commission, wrongful scaling was done. The children of close friends and relatives have been given benefit not only in scaling but at the level of interview too. One Narendra Choudhary, relative of Shri C.R. Choudhary, Chairman, Rajasthan Public Service Commission has also been given benefit of increase of marks from 726 to 792. Thus, the examination conducted by the Commission is in a cloud of doubt. 6. It is further submitted by the petitioners that the scaling system is wholly defective and illegal. Scaling of marks is required to be done only when there are large number of candidates appearing in the examination. The combined mean of all examiners and combined mean of all subjects are two different variants. Standard deviation of the examiners would be different in 5 different subjects. It is not known as to which formula was applied causing shocking results. Rules of 1999 do not allow any kind of scaling. Rule 15 lays down the Scheme of Examination, Personality and Viva-Voce Test. There are certain combination of subjects which cannot be opted together such as Mathematics and Statistics; Agriculture and Animal Husbandry & Veterinary Science. Even it was not permissible to go for scaling in the aforesaid subjects and then apply the mean of the subjects. Reliance has been placed upon the decision of the Apex Court in Sanjay Singh & Anr. Vs. U.P. Public Service Commission, Allahabad & Anr., (2007) 3 SCC 720. In compulsory papers, examiner-wise scaling could not have been resorted to; in case of difference, moderation is the answer. When under the Rules of 1999, no provision has been made to apply scaling, it could not have been resorted to and thus the action of applying scaling is beyond the powers of the Commission. Scaling technique could not have been applied even in optional subjects as scaling has created anomalous results, and thus, the final result so declared by the Commission be quashed and the Commission be directed to declare the result on the basis of raw marks obtained by the candidates without taking into consideration the scaled and interview marks. 7. The respondents, in their reply, have contended that the recommendation of the Commission is based on aggregate marks finally awarded to each candidate as per the scheme of examination provided under Rule 15 of the Rules of 1999. Scaling system has been approved by the Apex court in Mahesh Kumar 6 Khandelwal & 16 Ors. Vs. State of Rajasthan & Ors., 1994 (1) RLR 533; Rajasthan Public Service Commission Vs. Ramesh Chandra Pilwal, RLW 1997(2) Raj.1348 and in the matter of Manish Sinsinwar & Ors. Vs. Rajasthan Public Service Commission & Anr. (D.B. Civil Writ Petition (PIL) No.368/2004 decided on 14.6.2004). In scaling system, many examiners are involved in marking the answering scripts relating to a subject; in different languages the answers are given i.e. English and Hindi. Seven areas have been specified where scaling can be applied. Decision has been taken in consonance with those principles. After completion of main examination of 37 heterogeneous subjects having first and second papers, the evaluation was done with the help of several examiners as per the number of answer scripts, therefore, examiner code had been separately awarded. The subject mean and standard deviation are having much deviation, hence, to bring common mean and common standard deviation adoption of scaling system was necessary as held in the meeting dated 2.2.2009 and thereafter meeting of Experts was held on 13.3.2009 for application of the scaling technique. 8. A chart was placed before the Experts relating to variant subjects mean and standard deviation etc. Unanimous recommendation was made to apply the scaling principles as enumerated by V.Natarajan and K. Gunasekaran in their book. Considering the large number of examiners and subject variation, scaling was found to be appropriate mode to arrive at a just result. The combined mean of all examiners, the examiner subject mean, 7 pooled standard deviation of all examiners and standard deviation of the subjects concerned had been applied as per formula. Formula has been approved by this Court in Mahesh Kumar Khandelwal Vs. State of Rajasthan, 1994(1) RLR 533 against which SLP was dismissed by the Apex Court. 9. It is further contended that Ms.Sunita Meena is not at all in relation of Shri H.L. Meena, Member, Rajasthan Public Service Commission nor Shri H.L. Meena had participated in the interview; even Shri Meena was not a member of the Interview Board. Other averments have also been denied. Allegations levelled are baseless. No nepotism or favouritism has been done. Even as per the decision of the Apex Court in Sanjay Singh (supra), scaling is permitted in such exigencies. Examination in Sanjay Singh (supra) was for judicial service where the question papers were common, thus the facts of the instant case are different. No case for interference is made out. 10. In the rejoinder filed by the petitioners, it is contended that there was no necessity for applying scaling technique in four subjects as there were less than 100 candidates who appeared in the examination, thus the number of examiners could not have been more than one in each paper. Moreover, these papers as per the Rules of 1999 are such where candidate could have only opted for one of the said subjects. Thus, application of the scaling was bad in law. The formula is ineffective and defective. 8 11. Shri Sanjeev Prakash Sharma, Shri Ashok Gaur, Shri Rakesh Sharma and Ms.Shefali Sharma, learned counsel appearing on behalf of the petitioner, submitted that scaling technique was applied without any basis. Scaling could not have been resorted to in view of the decision of the Apex Court in Sanjay Singh (supra), scaling in compulsory papers could not have been resorted to as the formula has not been correctly applied. In the set of papers which could not be opted together, it was not permissible to apply scaling. The Commission had committed illegality in increasing the zone of consideration by reducing the cut-off marks for the OBC Category candidates. Certain candidates have been given higher marks in scaling as well as in the interview. It is a case where favouritism had been resorted to in order to oblige relatives and friends. Linear method of scaling has led to anomalous and absurd results. Decision in Sanjay Singh (supra) was operative when scaling has been resorted, thus scaling done in violation of the aforesaid dictum be quashed. Under the Rules of 1999, scaling is not provided. Examinerwise scaling could not have been resorted to; at the most, moderation was the solution for variation in the marks given by the examiners. The Commission erred in applying the scaling at two levels; of examiner and another subject scaling, thus twice scaling could not have been done. The formula of Natrajan has been deviated from every angle. In the case of Rajasthan Judicial Service, this Court struck down the scaling of marks which was done; the same principle is applicable with respect to the RAS examination also. Considering 74 papers in the optional subjects of 37 subjects and number of examiners 9 engaged, scaling was not necessary in compulsory papers, examinerwise scaling could have been done. In the optional papers where there was only one examiner, examinerwise scaling was not done. 12. Counsel further submitted that report of the experts appointed by this Court indicates that there was increase of zero marks to 50 marks and there was increase in certain cases to the maximum of 200 marks by method of scaling. The Commission illegally applied scaling where answer scripts were less than 100. The Commission could not have applied the scaling to the same subject group which could not have been opted together. It was not permissible to scale the marks of Agriculture Engineering with History by applying scaling. The Commission has appointed huge number of examiners whereas one examiner was sufficient for 300 answer scripts. This was done for treating the examiners variability in scaling for benefit of some candidates. 13. Counsel also submitted that application of scaling formula is arbitrary, irrational and without proper application of mind as well as without study by the experts. 14. Shri S.N. Kumawat, Additional Advocate General, Shri R.N. Mathur, Shri Alok Sharma and Shri Bharat Vyas, learned counsel appearing on behalf of the respondents submitted that considering large number of examiners and the fact that there were large number of optional subjects, scaling was the only appropriate 10 solution to arrive at a just result. In case scaling was not applied, candidates opting few optional subjects by virtue of the average mean marks in the subjects would have been selected. Thus, scaling of various optional subjects was necessary so as to bring the candidates on the common scale. For various disciplines of post advertised, experts of the different subjects are required to occupy the post. Rule 17 of the RAS Rules is different from the Rajasthan Judicial Service Rules. In optional subjects where there were more than one examiner, examinerwise scaling had been resorted to in which, subjectwise scaling of the optional subjects had been applied. Decision in Sanjay Singh (supra) supports the case of scaling in a situation where there are large number of optional papers. Action is not in violation of the Rules and various decisions rendered by this Court which have been affirmed by the Apex Court. The scaling in the RAS has been upheld. Consequently, no case for interference in these writ petitions is made out. 15. The main question for consideration is whether the Commission is justified in taking recourse to the process of scaling of the marks. It is not in dispute that there were 37 optional subjects each subject having first and second papers. There were total 74 papers in addition to 4 compulsory papers. It is also not in dispute that there were 385 examiners. It is also not in dispute that the linear method of scaling was applied, as laid down by V.Natarajan and K.Gunasekaran. They have laid down the 11 justification necessitating the adoption of scaling in para 6.2 of the recommendations, which is quoted below:- “6.2. Specific Recommendations : The situations necessitating adoption of Scaling which are discussed earlier are presented here again to reinforce it. They are: (1) When many examiners are involved in marking the scripts relating to a subject; (2) When scripts relating to two sets of students, one set answering in English and the other in a regional language, have to be scored; (3) When marks relating to different subjects are added so as to get an aggregate; (4) When Internal and External Assessment marks are to be added and/or compared; (5) When students' performance from different school Boards are to be equated; (6) When marks relating to objective part is to be added with that of essay part in a paper; and (7) When candidates' performance in parallel forms of an objective paper are to be compared.” It is not in dispute in the instant case that many examiners were involved in marking the answer scripts relating to the subjects and there were different languages, English and Hindi in which answers were given. It is also not in dispute that marks relating to different subjects are to be added so as to get an aggregate. The marks of interview as well as written examination are to be added. The students were from different background or schools/board. Objective marks of the candidates were also required to be added with that of essay part of a paper and performance in parallel forms of an objective paper was also 12 required to be compared. Thus, we find that considering large number of optional papers and optional subjects and the examiners, it was necessary to apply the scaling method to arrive at just results. If we consider subject-wise analysis for RAS Pre 2010, which indicates that in the subject of Agriculture, submean (raw) was 100.42; in Botany sub mean (raw) was 61.82; in Chemistry 65.1; in Computer Engineering 61.5; in Home Science 66.94; in Political Science 63.54; in Psychology 60.99. As compared to the aforesaid raw sub mean, the marks of other optional subjects were on extremely lower side such as Statistics sub mean (raw) was 23.47; in Public Administration sub mean (raw) was 29.14; in Mechanical Engineering 39.68; in Indian History 40.33; in Economics 33.88 etc. The subject mean after scaling had been arrived in the aforesaid subjects at 47.84. 16. Following are the figures submitted by the Rajasthan Public Service Commission of the sub mean (raw) and mean after scaling:- “RAJASTHAN PUBLIC SERVICE COMMISSION, AJMER SUBJECT WISE ANALYSIS OF STATISTICS FOR RAS (PRE.)2010 SUBCODE SUBJECT SCRIPTS SUBMEAN (RAW) MEAN AFTER SCALING 1 Agriculture 1480 100.42 47.84 2 Agriculture Engg. 111 47.73 47.84 3 Animal Husb. & Vete Sc. 322 43.79 47.84 4 Botany 9162 61.82 47.84 5 Chemistry 4905 65.1 47.84 6 Civil Engg. 399 44.76 47.84 7 Commerce 7509 48.74 47.84 8 Crop Husb. With Horticul. 729 52.22 47.84 9 Computer Engg. 1429 61.5 47.84 13 SUBCODE SUBJECT SCRIPTS SUBMEAN (RAW) MEAN AFTER SCALING 10 Computer Science 3658 51.1 47.84 11 Dairy Proc. & Technology 174 48.65 47.84 12 Economics 4534 33.88 47.84 13 Electrical Engg. 1115 52.86 47.84 14 Electronics & Telec Engg. 1568 36.48 47.84 15 Geography 27775 38.77 47.84 16 Geology 423 35.37 47.84 17 Home Science 2539 66.94 47.84 18 Indian History 85018 40.33 47.84 19 Law 4920 59.99 47.84 20 Mathematics 3586 40.73 47.84 21 Mechanical Engg. 749 39.68 47.84 22 Mining Engg. 60 42.9 47.84 23 Philosophy 2157 43.07 47.84 24 Physics 946 59 47.84 25 Political Science 58472 63.54 47.84 26 Psychology 1834 60.99 47.84 27 Public Administration 14861 29.14 47.84 28 Sociology 14066 42.01 47.84 29 Statistics 196 23.47 47.84 30 Zoology 9193 46.37 47.84 Note:In total 13500 candidates were passed in pre examination. Scaling produced on overall average 47.84 becomes the average for individual subject also which give equal opportunity to candidates belonging to all 30 subjects. In case scaling is not adopted then among 13500 candidates approx.1/3 would be from the subject of Pol.Sc. alone, likewise candidates from Botany, Agriculture, Crop Husb. & Hort., Home Sci.,Law, Psychology etc. will be over representative as average marks of candidates in these subjects are very high, whereas candidates obtaining statistics, Geology, Geography, ETCE, Economics and the like will have very remote chance of getting through the pre examination because of a tough paper setting or a tough nature of the subject. After scaling all the subjects are put to on an equal footing with an average of 47.84 marks. It clearly establishes that scaling remove the variation due to subject (either on account of tough paper setting & tough subject).” 14 17. It is apparent that there was variation in the sub mean (raw) of subjects. Thus, to give equal opportunity to the candidates belonging to all optional subjects, scaling was resorted to. In case scaling had not been adopted, the students of Political Science, Botany, Agriculture, Crop Husbandry and Home Science, Law, Psychology, etc. would have steal the advantage over the other students and the students having Statistics, Geology, Geography, Economics etc., would have remote chance of getting through the examination. 18. In Sanjay Singh (supra), the Apex Court has laid down in the context of judicial service Rules of Uttar Pradesh that where a large number of candidates take examination, it will not be possible to get all the answer scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts. There is difference in average marks. This apart, there is “hawk-dove” effect. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. At the same time, the Apex Court has observed that it should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity. 19. In Sanjay Singh (supra), the Apex Court also took note of the fact that in judicial service examination, the candidates were required to take the examination in respect of all the five compulsory subjects and the candidates did not have any option in 15 regard to the subjects. Consequently, the Apex Court laid down that in such a situation, moderation appeared to be an ideal solution. The Apex Court at the same time has laid down that there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogeneous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. In such a situation, candidates who have opted for easier subjects may steal an advantage over those who opted for difficult subjects. The paper-setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. Their Lordships have given examples vividly of variations so caused and the Apex Court ultimately observed that in view of the peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of the candidates who have opted for different subjects can be ascertained. The moderation will solve only the problem of examiner variability. Moderation is no answer where the problem is to find inter se merit across several subjects. Thus scaling is not arbitrary in such exigencies. The Apex Court has laid down in Sanjay Singh (supra) thus:- “24.In the Judicial Service Examination, the candidates were required to take the examination in respect 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 which have a 16 competitive situation where candidates have the option of selecting one or few among a variety of heterogeneous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that marks of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. This may happen when for example, in a Civil Service examination, where Physics