W.P.(C) No.6586/2010 & Conn. Matters Page 1 of 43 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 28th September, 2010 Judgment Delivered On: 5th October, 2010 + W.P.(C) 6586/2010 PRASHANT RAMESH CHAKKARWAR & ANR. ..... Petitioners Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 W.P.(C) 6590/2010 SONIA CHAHAR ..... Petitioner Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 W.P.(C) 6592/2010 SANJAY KUMAR SINGH & ORS. ..... Petitioners Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 W.P.(C) No.6586/2010 & Conn. Matters Page 2 of 43 W.P.(C) 6596/2010 ASHISH GUPTA ..... Petitioner Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 W.P.(C) 6601/2010 PRANAV KUMAR VATSA ..... Petitioner Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 W.P.(C) 6602/2010 PHANI BHUSHAN & ORS. ..... Petitioners Through: Mr.Sumit Kumar, Advocate versus UNION PUBLIC SERVICE COMMISSION & ANR. ..... Respondents Through: Ms.Aditi Gupta, Advocate for R-1 Ms.Sugandha, Advocate for Mr.Atul Nanda, Advocate for R-2 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? W.P.(C) No.6586/2010 & Conn. Matters Page 3 of 43 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Every year, Union Public Service Commission (hereinafter referred to as the “UPSC”) conducts Civil Services Examination for the purposes of recruitment to Indian Administrative Service and other allied services. So high are the expectations of some candidates that on not finding success, they resort to litigation as they earnestly believe that by no reasonable process of evaluation, could they achieve such low level of success. We find that virtually every year same ritualistic pleas are urged, notwithstanding that the issue has been debated repeatedly and Courts have held, that though not a perfect situation, in the absence of a better alternative, the procedures followed by UPSC while evaluating the answer sheets do not warrant judicial interference. We had heard learned counsel for the petitioner and the respondents at length on 28.9.2010. It was the first date when the matter was listed before us. The petitioners were relying upon pleadings of UPSC in earlier litigations and the issues were discussed with reference to the said pleadings. 2. The Civil Services Examination comprises of two successive stages; namely, (i) Civil Services Preliminary Examination (Objective Type) for the selection of candidates for appearing in the main examination, and (ii) Civil Services Main examination (Written and Interview) for the selection of candidates for the various services and posts. The Preliminary Examination consists of two papers of objective type (multiple choice questions) in two subjects, namely, General Studies and one subject to be selected from the list of optional subjects set out in paragraph 2 of the plan of examinations notified by the W.P.(C) No.6586/2010 & Conn. Matters Page 4 of 43 UPSC and carries 150 and 300 marks respectively. The marks obtained in the preliminary examination are not considered and counted for determining the final order of merit of the successful candidates at the main examination. The candidates who are declared successful in the Preliminary Examination are required to appear at the Main Examination which consists of written examination as well as viva voce test. The written examination consists of nine papers; namely, two papers each for two optional subjects, two papers pertaining to General Studies, one paper pertaining to English, one paper pertaining to Regional Language and one paper pertaining to an essay written by the candidate. The marks pertaining to English and Regional Language are not counted for purposes of ranking in the examination. The papers pertaining to optional subjects and General Studies carry 300 marks whereas the paper pertaining to essay carries 200 marks, thus totaling 2000 marks in all. The viva voce test carries 300 marks. The marks obtained by a candidate in the Main Examination (written as well as viva voce) determine his final ranking. The successful candidates are allotted various services having regard to their ranking in the examination and the preferences expressed by them for various services and posts. 3. The petitioners herein are the civil services aspirants, who appeared in Civil Services Examinations conducted by UPSC in the years 2007, 2008 and 2009. The petitioners successfully cleared the Preliminary Examination in the year they sat, but could not qualify in the Main Examination. Aggrieved by the marks awarded to them in the Main Examination, the petitioners filed applications under Section 19, Administrative Tribunals Act, 1985 before Principal Bench W.P.(C) No.6586/2010 & Conn. Matters Page 5 of 43 of Central Administrative Tribunal, New Delhi inter-alia, alleging that the possibility that there were irregularities in the Civil Services Examination conducted by UPSC in the years 2007-2009 cannot be ruled out inasmuch as various irregularities have been detected in the Civil Services Examinations conducted in the past several years and that the process adopted by UPSC for evaluation of answer sheets of the candidates pertaining to Main Examination is arbitrary and illegal. The details of the applications filed by the petitioners are being tabulated herein below:- S. No Number of application filed in Tribunal (O.A. No.) Date of filing of application before Tribunal Year of challeng e of Civil Services Examinat ion Date of judgment of Tribunal Number of Writ Petition filed by applicant (W.P. (C) No) 1. 1565/2010 30.04.2010 2008 13.05.2010 6586/2010 2. 3504/2009 05.11.2009 2007 04.12.2009 6590/2010 3. 3507/2009 05.11.2009 2007 04.12.2009 6592/2010 4. 3502/2009 05.11.2009 2007 04.12.2009 6602/2010 5. 2419/2010 27.07.2010 2009 11.08.2010 6601/2010 6. 1252/2009 30.04.2009 2008 21.05.2009 6596/2010 4. For the sake of convenience, O.A. No.1565/2010 titled ‘Prashant Ramesh Chakkravar & Anr v Union Public Service Commission & Anr’ shall be treated as the lead matter inasmuch as a perusal of the aforesaid applications reveals that the contents thereof are more or less identical and during arguments said petition was extensively referred to. W.P.(C) No.6586/2010 & Conn. Matters Page 6 of 43 5. As already noted herein above, feeling aggrieved by the marks awarded to them by UPSC, petitioners namely, Prashant Ramesh Chakkravar and Pranav Kumar Vatsa, filed O.A. No.1565/2010 before the Tribunal, inter-alia, seeking following reliefs:- i) Direct the respondent to produce all the records relating to the case including attendance sheets/Proforma F containing details of supplements taken, the answer books of the Applicants in all the subject and verify the irregularities committed by the Respondent in the evaluation of the answer books; and ii) Direct the respondent to produce attendance sheets/Proforma F (Containing details of supplements used) of all the applicants to verify the number of extra sheet used by them and verify the irregularities committed by the Respondent; iii) Direct the respondent to produce raw and moderated marks of applicants and all other candidates in Civil Services (Main) Examination 2008 to verify justness of moderation system; iv) To strike down the system of moderation/scaling applied by the UPSC after asking UPSC to explain the system; v) Direct the Respondent to bring uniformity on the system of awarding marks in personality test by reducing excessive subjectivity; W.P.(C) No.6586/2010 & Conn. Matters Page 7 of 43 vi) Permit the Applicants to carry out the inspection of the answer books in the answer books in the Court. vii) direct the respondent to reexamine and re- evaluate the answer books of the Applicants where the irregularities are found to be existing in the evaluation process of Civil Service (Main) Examination 2008; and viii) direct the respondent to declare the Applicants pass in the Civil Service (Main) Examination 2008 if after revaluation and proper valuation they get more marks than the mark achieved by the last candidate in the result who was called for interview and consider them for appointment; and viii) To pass such other order/orders as this Hon‟ble Tribunal may deem just and proper in the facts and circumstances of the case.” 6. To demonstrate that there was a possibility of irregularities in the Civil Services Examinations conducted by UPSC in the years 2007, 2008 and 2009 following averments were made in the application:- “4.17 It is respectfully submitted that in recent past, a number of instances have come to light intimating serious irregularities in the conduct of the examinations. Some of them are explained below: (a) In the 1985 Examinations, when the result was declared, it was found that none from Bhopal Center was selected for interview. The candidates from that Center made representations to the UPSC. When the Press took up the matter, the UPSC conducted inquiries and it was found that the answer-sheets of General Studies-II of all 95/97 candidates of that W.P.(C) No.6586/2010 & Conn. Matters Page 8 of 43 Center were lost and were untraceable. As such, fresh examination was held for these candidates as a result of which, 25 of them were called for interview. Out of these 25, 22, were finally declared successful. This has been accepted by the Respondent before this Hon‟ble Tribunal in O.A. No.816 of 1997. (b) In 1985, the C.B.I. registered a case under Sections 420, 464, 471 and 120-B of the I.P.C. as also under the Prevention of Corruption Act against one, Ratipal Saroj and four employees of UPSC, Shri Saroj was selected in Civil Service Examinations, 1985 and was declared as No.3 in the merit list. A letter was written by certain candidates of Allahabad Centre to the Prime Minister declaring their suspicion and requested him to look into the matter. The C.B.I. inquiries revealed that Shri Saroj joined the UPSC as Section Officer and then was promoted to the post of Deputy Secretary. He was well known to a number of officers in UPSC to whom he had been supplying various articles from time to time. It was alleged that he replaced his answer sheets with the new ones in the UPSC in collusion with the officers. In this examination he got very good marks and stood third in the examination. A copy of news item reported by the Tribune News Service, downloaded from the Internet and other paper cuttings showing irregularities in the recruitment of the respondent is annexed as ANNEXURE A-4. (c) In 1985, the C.B.I. filed another case under Section 420 and 120-B of the I.P.C. against Sanjay Bhatia and others. The accusation against him was that he produced false Caste certificate showing himself to be a Scheduled Caste and he got himself selected for I.P.S. (d) In 2001, one Nitin Verma was initially declared to be on 278th rank. However, after re valuation he was declared to be holding 28th rank. Translated copy with original of Daily “Dainik Bhasker” dated 25.7.2002 showing this fact is filed herewith as ANNEXURE A-5. (e) Mr.Brijees Sher Arzoo Roll No.306429 who was reported absent in the paper of Urdu literature I & II as his optional in Civil Services (Main) Examination W.P.(C) No.6586/2010 & Conn. Matters Page 9 of 43 2005 contrary to his actual score of 176 out of 300 and 190 out of 300 respectively. (f) In 2006, the lines of SC and ST candidates for Civil Service Main Exam. 2005 were deliberately exchanged thereby affecting the entire list. True copy of news report to this effect published in “Hindustan” daily dated 8.6.2006 and revised merit list is filed herewith as ANNEXURE A 6 (COLLY). (g) Even in 2006, re-examination of Public Administration paper in Civil (Services Preliminary) Examination, 2006 has been held due to discrepancy in tallying the number of question papers at one of the examination centres. True copy of the news report to this effect containing in “The Hindu” dated 17.5.2006 is filed as ANNEXURE A-7. (h) The news report contained in the Indian Express dated 16.7.2006 shows that even before the declaration of result a candidate namely Sunita Dogra claimed herself to be successful in the UPSC which also show flaw in the system. The same is filed as ANNEXURE A-8. (i) There are general allegations against many officers of the UPSC, that they got the question out in order to get their wards and relatives qualified for the Civil Services examination. There are other allegations causing suspicion on account of the fact that the wards of I.A.S. officers are invariable selected in these examinations. The other allegations are that in Rau‟s Circle (Rau Study Circle for 1985 Examination, a guess paper was given to the students with 11 questions out of which 8 questions appeared in the actual question paper. Further, during the investigations by the C.B.I. into the matter of Saroj and Sanjay Bhatia, two other candidates, namely, Mrindula Sinha and Suresh Chandra were also found to be involved. It has also been reported in the Press that with the manipulations of the UPSC officials, answer-sheets had been substituted in some other cases. (j) The irregularity may also be seen in the case of Chittranjan Kumar wherein, when he requested the Respondent for rechecking the papers of Hindi paper II, the Respondent responded vide letter dated W.P.(C) No.6586/2010 & Conn. Matters Page 10 of 43 16.6.2009 that the total number of answer-sheets used by him was 2. When he further applied for details of the number and serial No. of the copies, the Respondent replied vide letter dated 22.7.2009 and thereby stated the number of answer-sheets of Hindi paper II was 3. However, in fact that the candidate had written four answer-sheets in Hindi Paper II. The Respondent further did not mention the map submitted with the paper of History Paper-I. True copy of the letter dated 16.6.2009 alongwith translation and letter dated 22.7.2009 sent by the Respondent is filed herewith as ANNEXURE A-9 (COLLY). 4.10. These instances show that the UPSC is not infallible and that the recruitment process of UPSC is not full proof. It is further submitted that where many instances have come to public knowledge, there may be several others which may not come into light due to the closed system of recruitment process and this itself hurts the integrity of the highest agency of recruitment in India….” 7. With respect to the allegations pertaining to method adopted by UPSC for evaluation of answer sheets of candidates pertaining to the Main Examination being arbitrary and illegal, following averments were made in the application:- “4.12 It is respectfully submitted that the said lower marks of the Petitioners may be due to the manner of evaluation applied by the Respondent for evaluation of Answer-Books of Main‟s Examination which includes the scheme of Moderation as disclosed by the Respondent in several cases including the case of Subash Chandra Dixit Vs. U.P. Public Service Commission (S.L.P. (civil) 23723/2002) before Hon‟ble Supreme Court and before Hon‟ble Delhi High Court in case of Neel Ratan Vs. union of India and ors (CWP No.1271 of 2006) true copy of which are filed herewith as ANNEXURE P-11 (COLLY). …. 4.14 It is further submitted as per own admission of the respondent in case of Neel Ratan Vs. union of W.P.(C) No.6586/2010 & Conn. Matters Page 11 of 43 India CWP No.1271 of 2006, statistical moderation is done by liner transformation of marks….. It is respectfully submitted though the Respondent has not clarified anywhere what is liner transformation and how it is different from linear scaling, the Applicant has tried to find out the materials on the concerned issue and have been able to find out at least two reports which suggest that the said linear transformation of marks is same as liner scaling, except the name…… True copy of the report to the qualifications and curriculum authority “Statistical moderation of teachers assessment” commissioned by the qualifications and curriculum authority, United Kingdom prepared by “John Wilmut and Jennifer Tuson” is filed herewith as ANNEXURE P-12 (colly). ….. 4.22 It is further submitted that in the case of Subash Chandra Dixit Vs. U.P. Public Service Commission (S.L.P. (civil) 23723/2002) the Respondent Commission had stated that they follow equi-percentile method of scaling and not linear scaling. However, the Respondent Commission has in the case of Neel Ratan has stated in their Additional Affidavit dated 10.3.2006 that they do stastical moderation by Linear transformation in subjective papers of Civile Services Examination. Meanwhile, as the above reports show, the Linear Transformation is the Linear Scaling only, and therefore, the Respondent Commission is applying the same method of Linear Scaling in the present case which it has been found to be improper by Hon‟ble Supreme Court in Sanjay Singh & Anr Vs.UPSC (2007) 2 Scale 1)…..” (Emphasis Supplied) 8. The relevant portion of the counter affidavit filed by UPSC before Supreme Court in Special Leave Petition (Civil) No.23723/2007 titled ‘U.P. Public Service Commission Vs. Subash Chandra Dixit & Ors”, which affidavit was relied upon by the petitioner(s) to show that the method adopted by the W.P.(C) No.6586/2010 & Conn. Matters Page 12 of 43 UPPSC for evaluation of answer sheets of the candidates pertaining to Main Examination is faulty, reads as under:- “3. This respondent further craves leave to submit that the scaling system being followed by Uttar Pradesh PSC is different from that of the UPSC. The Uttar Pradesh PSC is following a linear method (also known as standard deviation method) for its examination which involve descriptive as well as objective type of papers. As against this the UPSC follows two different and distinct procedures for the objective and descriptive papers. As regards examinations involving optional objective papers the UPSC scaling procedure is based on Normalized Equi- Percentile (NEP) method. Descriptive (Conventional) type question papers are manually evaluated. These are subjected to moderation and not scaling. The scaling is done only in the Civil Services (Preliminary) Examination where the candidates have the choice to opt for any one paper out of 23 optional papers. No scaling is done for the compulsory papers in any of the examinations conducted by the UPSC. …. MODERATION 16. Moderation is applied by UPSC to achieve uniformity in standards of evaluation of descriptive answer books where a number of examiners are involved. The problem of uniformity of standards becomes more complex when viewed against the background that candidates in Civil Services (Main) Examination have the option of answering the papers, besides English, in any one of the eighteen languages specified in the Eighth Schedule of the Constitution. 17. As far as conventional/descriptive type of examinations are concerned, the question papers are set up by experts duly approved by the Commission for each subject. The paper setter acts as the Head Examiner. 18. When conventional papers are set, the answers have to be of descriptive type by the very nature of questions, and such answers are evaluated by a W.P.(C) No.6586/2010 & Conn. Matters Page 13 of 43 number of examiners, depending upon the number of candidates. These examiners are called Additional Examiners and work under the Head Examiner for each subject. 19. The Commission have devised a procedure of moderation to ensure equitable treatment to all candidates and to judge them on merit by reducing the “Examination variability” to the extent possible. 20. The experts who set the question papers for each subject, act as Head-Examiner for the evaluation of the answer-books of that subject/paper. Whenever the number of candidates is very large in a particular subject, the Commission appoints Additional Examiners from amongst subject experts. Each Additional Examiner evaluates approximately 250 to 300 answer books. To achieve uniformity in valuation, where more than one examiner are involved, the UPSC arrange for a meeting of the Head Examiner with his additional examiners for each subject soon after the examination is over. At this stage, they thoroughly discuss the question paper and the appropriate answers. They also carry out a sample valuation of answer books and this is reviewed by the Head Examiner and variations in marking, if any, are further discussed. After the discussion is over and the standard of evaluation of Answer Scripts has been decided upon, the examiners disperse and complete the valuation of answer books according to a given time schedule. 21. This exercise alone is not enough to bring about uniformity of assessment since, in the process of valuation, the examiners tend to deviate from the standards laid down by Head Examiner and expected to be followed. The UPSC therefore, apply further checks to ensure uniformity in evaluation of answer scripts. 22. After all the answer scripts duly evaluated are received back in the office of the UPSC from each Additional Examiner, they are kept separately each Additional Examiner-wise. To ensure that Additional Examiners have not deviated from the uniform standards of evaluation and followed the agreed norms the Head Examiner conducts sample survey W.P.(C) No.6586/2010 & Conn. Matters Page 14 of 43 of the 20 answer books (ten highest scoring answer books and ten selected random in respect of each of the additional examiners). Depending on the standards adopted by the additional examiner, the Head Examiner confirms the awards without any change or carries out upward or downward moderation according to the degree of leniency or strictness in marking. The awards given by the Head Examiner of these revalued 20 answer books are accepted as final. 23. As regards the other answer scripts, to achieve maximum measure of uniformity inter se the examiners, the award of marks by the additional Examiners are moderated as considered appropriate by the Head Examiner. To achieve the uniformity in the standards of evaluation, this exercise is done in regard to each subject in the Main Written Examination. If in the opinion of the Head Examiner, there has been totally erratic marking by an additional examiner, for which the Head Examiner considers that it is not feasible to have statistical moderation, the scripts already evaluated by the additional examiner are revalued by the Head Examiner or by any other additional examiner whose norms of marking are similar to that of the Head Examiner and other additional examiners. 24. It may be relevant to mention here that the answer scripts are given dummy roll numbers to ensure anonymity. 25. In a competitive written examination with 51 different optional subjects as in the C.S. (Main) Examinations, it is not enough only to ensure reasonable degree of uniformity between the examiners in individual subjects but also inter se subjects. If a paper setter in a particular subject is very strict or lenient in either setting the question paper or in awarding marks to candidates, then the candidates offering that subject may lose or gain, as compared to others offering different optional subjects, not on merit but because the paper setter/examiner has been strict or lenient. It, therefore, becomes necessary to moderate the marks scored by the candidates with a view to bringing about the uniform standards between all W.P.(C) No.6586/2010 & Conn. Matters Page 15 of 43 the subjects also. The Commission, therefore, considers the statistical position of all the optional subjects to see whether the evaluation in any subject have been too strict or too lenient and accordingly does statistical moderation where it is considered necessary…..” 9. The relevant portion of the additional affidavit filed by UPSC before this Court in Writ Petition (Civil) No.1271/2006 titled „Neel Ratan Vs Union of India & Ors”, which affidavit was relied upon by the petitioner(s) to show that the method adopted by UPSC for evaluation of answer sheets of the candidates pertaining to Main Examinations is faulty, reads as under:- “12. That in a competitive written examination with 51 different optional subjects as in the C.S. (Main) Examinations, it is necessary not only to ensure