Singh & Anr Vs. U.P. Public Service Commission, Allahabad & Anr  Insc 19
(9 January 2007)
Sabharwal, C. K. Thakker & R. V. Raveendran [With W.P. (C) Nos.172, 409, 466 and
467 of 2005] Raveendran, J.
petitions under Article 32 of the Constitution of India have been filed by the
unsuccessful candidates who appeared in the examinations conducted by the Uttar
Pradesh Public Service Commission ('Commission for short) for recruitment to
the posts of Civil Judge (Junior Division).
On the request
of the Allahabad High Court, to conduct the examination for filling 347 posts
of Civil Judge (Junior Division), the Commission issued an advertisement in the
Employment News dated 28.11.2003. As many as 51524 candidates appeared for the
"U.P. Judicial Service Civil Judge, (Junior Division) Preliminary
Examination, 2003" conducted by the Commission on 21.3.2004. The
preliminary examination was of 'objective' type consisting of two papers General
Knowledge and Law. The result was declared on 30.6.2004 and 6046 candidates
were declared qualified to appear for the "U.P. Civil Judge (Junior
Division) Examination (Main), 2003" which was of
'descriptive' (conventional) type.
Main examination consisted of five papers (each carrying 200 marks) - General Knowledge,
Language, Law I, II and III - and was held between 5th and 7th October, 2004. The number of candidates who took
the said examination was 5748.
scripts relating to each subject were distributed to several examiners for
valuation, as it was not possible to get the large number evaluated by a single
examiner. The number of examiners, to whom the answer-scripts were distributed
for valuation, were as follows : General Knowledge 18, Language 14, Law-I 11,
Law-II 10, and Law-III 14.
marks assigned by the examiners were subjected to 'statistical scaling' and the
results of written examination based on such scaled marks, were declared on
7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005 and
26.4.2005. After such interview, the Commission declared the final results of
the examination on 1.5.2005 based on the aggregate of 'scaled marks' in the
written (Main) examination and the marks awarded in the interview. On the
recommendations made by Commission, appointments were made to 347 posts of
Civil Judge, Junior Division.
who were unsuccessful, are aggrieved. They contend that the statistical scaling
system adopted by the Commission is illegal as it is contrary to the Uttar
Pradesh Judicial Service Rules, 2001. They also contend that conversion of
their raw marks into scaled marks, is illegal as it was done by applying an
arbitrary, irrational and inappropriate scaling formula. It is submitted that
the Commission's exercise of subjecting the marks secured by the candidates to
scaling, has resulted in meritorious students being ignored, and less
meritorious students being awarded higher marks and selected, thereby violating
the fundamental rights of the candidates.
[C] No.165/2005 was filed on 5.4.2005 even before the final results were
for a direction
to the Commission not to adopt the system of scaling and to declare the results
of the Main Examination on the basis of actual marks obtained by the
for a direction
that the petition be heard by a Bench of three or more Judges as the decision
of a Bench of two Judges of this Court in U.P. Public Service Commission v. Subhash
Chandra Dixit [2003 (12) SCC 701] upholding the system of scaling adopted by
the Commission does not lay down the correct law.
petitions were filed after declaration of the final results, in effect, for the
following reliefs :
for quashing the
results of the U.P. Civil Judge (Junior Division) Main Examination-2003
declared on 7.3.2005 and the final results declared on 1.5.2005 on the basis of
scaled marks and direct the Commission to declare the results on the basis of
actual marks secured by the candidates;
to direct an
inquiry by an independent agency into the irregularities committed by the
Commission in the said examination;
declaration that the use of 'statistical scaling' in regard to the examinations
for the subordinate judiciary is unconstitutional; and
the law laid down in Subhash Chandra Dixit (supra).
raised the threshold bar of maintainability. It is submitted that this Court in
S. C. Dixit (supra), has rejected identical grounds of attack and upheld the
statistical scaling method adopted by the Commission in the examination
conducted in 2000. It is contended that the prayers in these petitions under
Article 32, in effect, seek setting aside or review of the decision in S. C. Dixit,
and that is impermissible. Reliance is placed on the Constitution Bench
decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [2002 (4) SCC 388],
to contend that a writ petition under Article 32 would not lie to challenge any
judgment of this Court or that of a High Court, as superior courts are not
'State' within the meaning of Article 12 and their judgments cannot be termed
as violative of fundamental rights. It is also pointed out that Review Petition
(Civil) No. 162/2004 and Curative Petition No.43/2004 filed in respect of S. C.
Dixit (supra) were rejected on 04.2.2004 and 6.10.2004 respectively.
In regard to
merits, the Commission contended that the 'statistical scaling' method adopted
in regard to Civil Judge (Junior Division) Examination is legal, scientific and
sound and its policy to apply statistical scaling to marks of written
examination, was based on experts' opinion as also the experience gained in
conducting several examinations. It is submitted that under the proviso to Rule
50 of the U.P.Public Service Commission (Procedure and Conduct of Business)
Rules, 1976, it is entitled to adopt any formula or method or device to
eliminate variation in marks;
it found variation in the marks awarded by different examiners on account of a
phenomenon known as 'examiner variability' and to eliminate it, statistical
scaling was introduced. It is further submitted that matters relating to the
conduct of Examination, evaluation of answer-scripts, application of methods to
bring in uniformity in evaluation are matters of policy involving technical and
scientific decisions based on expert opinion;
courts are not equipped to pronounce upon such matters and, therefore, should
not interfere in the absence of manifest arbitrariness or mala fides;
that, at all events, in the absence of an opinion by a body of experts in the
field of statistics certifying that the system of scaling adopted by the
Commission is unsound and irrational, there should be no interference.
it is submitted that if the court, for any reason, should hold that the
existing scaling system should be substituted, that should be done
contentions urged, the following questions arise for our consideration :
Whether the writ
petitions are not maintainable ?
'scaling' of marks is contrary to or prohibited by the relevant rules ?
'scaling system' adopted by the Commission is arbitrary and irrational, and
whether the decision in S. C. Dixit (supra) approving the 'scaling system'
requires reconsideration ?
statistical scaling system is found to be illegal or irrational or unsound,
whether the selections already made, which are the subject-matter of these
petitions, should be interfered with? Re : Question (i) :
It is true that
a judgment of this Court cannot be challenged in a petition under Article 32.
It can, however, be reviewed under Article 137 or in exceptional circumstances
reconsidered in exercise of inherent power, on a curative petition (See Rupa Ashok
Hurra). It is equally true that a final judgment of a High Court can be
challenged only by an appeal under Articles 132 to 134 or by obtaining 'special
leave' under Article 136 and not by a petition under Article 32. But that is
not the issue here.
In regard to
decisions of civil courts in suits governed by Civil Procedure Code or appeals therefrom,
the term 'judgment' refers to the grounds of a decree or order, 'decree' refers
to the formal expression of an adjudication in a suit and 'order' refers to
formal expression of any decision of a civil court which is not a decree. In
regard to the decisions of High Court and Supreme Court in writ jurisdiction,
the term 'judgment' is normally used to refer to the 'judgment and order', that
is the grounds for the decision and the formal expression of the decision. The
petitioners do not seek to upset the 'order' part of the judgment in S. C. Dixit
(supra) which decided the validity of UP Civil Judge (Junior Division),
Examination, 2000, held under the UP Nyayik Sewa Niyamawali 1951. The grievance
of the petitioners is in regard to the UP Civil Judge (Junior Division)
Examination, 2003, held under the UP Judicial Service Rules 2001. They,
however, contend that the ratio decidendi of the decision in S.C. Dixit
upholding the Commission's system of scaling of marks in written examination,
requires reconsideration. Therefore, these petitions are neither for 'review'
nor for 'setting aside' or 'questioning' the decision in S.C. Dixit. Therefore,
the bar, referred to in Rupa Ashok Hurra, will not apply.
of Commission also overlooks the fundamental difference between challenge to
the final order forming part of the judgment and challenge to the ratio decidendi
of the judgment. Broadly speaking, every judgment of superior courts has three
the facts and
the point at issue;
the reasons for
the decision; and
the final order
containing the decision. The reasons for the decision or the ratio decidendi is
not the final order containing the decision. In fact, in a judgment of this
Court, though the ratio decidendi may point to a particular result, the
decision (final order relating to relief) may be different and not a natural
consequence of the ratio decidendi of the judgment. This may happen either on
account of any subsequent event or the need to mould the relief to do complete
justice in the matter. It is the ratio decidendi of a judgment and not the
final order in the judgment, which forms a precedent. The term 'judgment' and
'decision' are used, rather loosely, to refer to the entire judgment or the
final order or the ratio decidendi of a judgment. Rupa Ashok Hurra (supra) is of
course, an authority for the proposition that a petition under Article 32 would
not be maintainable to challenge or set aside or quash the final order
contained in a judgment of this Court. It does not lay down a proposition that
the ratio decidendi of any earlier decision cannot be examined or differed in
another case. Where violation of a fundamental right of a citizen is alleged in
a petition under Article 32, it cannot be dismissed, as not maintainable,
merely because it seeks to distinguish or challenge the ratio decidendi of an
earlier judgment, except where it is between the same parties and in respect of
the same cause of action. Where a legal issue raised in a petition under
Article 32 is covered by a decision of this Court, the Court may dismiss the
petition following the ratio decidendi of the earlier decision. Such dismissal
is not on the ground of 'maintainability' but on the ground that the issue
raised is not tenable, in view of the law laid down in the earlier decision.
But if the court is satisfied that the issue raised in the later petition
requires consideration and in that context the earlier decision requires
re-examination, the court can certainly proceed to examine the matter (or refer
the matter to a larger Bench, if the earlier decision is not of a smaller
Bench). When the issue is re-examined and a view is taken different from the
one taken earlier, a new ratio is laid down. When the ratio decidendi of the
earlier decision undergoes such change, the final order of the earlier decision
as applicable to the parties to the earlier decision, is in no way altered or
disturbed. Therefore, the contention that a writ petition under Article 32 is
barred or not maintainable with reference to an issue which is the
subject-matter of an earlier decision, is rejected.
Question (ii) :
Article 234 of
the Constitution requires appointments to the Judicial Service of a State
(other than District Judges) to be made by the Governor of the State in
accordance with the Rules made by him in that behalf, after consultation with
the State Public Service Commission and with the High Court exercising
jurisdiction in relation to such State. The UP Judicial Service Rules, 2001
(for short 'Judicial Service Rules') were made by the Governor of Uttar Pradesh
in exercise of powers conferred by Article 234 and Article 309 of the
Constitution, in consultation with the Commission and the Allahabad High Court,
to regulate the recruitment and appointment to Uttar Pradesh Judicial Service.
The Judicial Service Rules replaced the 'Uttar Pradesh Nyayik Sewa Niyamawali,
1951' which was in force earlier.
Judicial Service Rules were amended by the Uttar Pradesh Judicial Service
(Amendment) Rules, 2003.
1 Rule 7 of the Judicial Service Rules
provides that recruitment to the post of Civil Judge (Junior Division) shall be
by direct recruitment on the basis of a competitive examination conducted by
Commission. Part V of the said rules lays down the procedure for recruitment to
Judicial Service. Rule 16 provides for competitive examination and Rule 19
deals with the syllabus. The said rules are extracted below :
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
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;
to test the knowledge of the candidates in Hindi, English and Urdu;
an interview for
assessing merit of the candidate giving due regard to his ability, character,
personality, physique and genera suitability for appointment to the service.
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." Appendix II to the Rules
contains the syllabus for the competitive examination. It enumerates the
details of the five subjects for the written examination and the number of
marks carried by each subject (200 each). It also provides for a Personality
Test (interview) to find out the suitability of the candidates (carrying 100
marks). Note (i) to Appendix-II provides that "the marks obtained in the
interview will be added to the marks obtained in the written papers and the
candidate's place will depend on the aggregate of both".
Sub-Rule (1) of Rule 20 of the
Judicial Service Rules requires the Commission to prepare the result of the
written examination and thereafter, invite such number of candidates, who in
the opinion of the commission have secured minimum marks as may be fixed.
(2) provides for participation of a sitting Judge in the interview of
(3) provides that the Commission shall prepare a final list of selected
candidates in order of their proficiency as disclosed by aggregates of marks
finally awarded to each candidate in the written examination and the interview.
The proviso thereto provides that if two or more candidates obtain equal marks
in the aggregate, the name of the candidate who is elder in age shall be placed
higher and where two or more candidates of equal age obtain equal marks in the
aggregate, the name of the candidate who has obtained higher marks in the
written examination shall be placed higher.
21 provides that the Governor shall on receipt of the list of candidates
submitted by the Commission under Rule 20(3) make appointment on the posts of
Civil Judge (Junior Division) in the order in which their names are given in
the list provided. Thus the Judicial Service Rules constitute a complete code
in itself in regard to recruitment to Judicial Service. It is also evident that
the marks finally awarded to each candidate in the written examination and interview
are crucial both for appointment as also for purposes of inter se seniority.
The petitioners point out that the
Judicial Service Rules do not provide for substituting the actual marks
obtained by a candidate by scaled marks. It is contended that the words
"marks obtained in the written papers" in Note (i) of Appendix II
clearly indicate that the actual marks obtained in the written examination
alone should be taken into account and not any moderated or scaled marks; that
in the absence of any provision for scaling in the Judicial Service Rules, the
Commission had no authority to substitute the actual marks by 'scaled marks';
and that the places/ranks of the candidates should be determined strictly on
the basis of the aggregate of the actual marks obtained in the main written
examination plus the marks obtained in interview.
The Commission contends that the
manner of conducting examination by the Commission, even in regard to
recruitment to Judicial Service, is governed by the Uttar Pradesh Public
Service Commission (Procedure and Conduct of Business) Rules, 1976 (for short
'PSC Procedure Rules') made by the Commission in exercise of the power
conferred by the UP State Public Service Commission (Regulation of Procedure
and Conduct of Business) Act, 1974. Rule 26 provides for preparation of a panel
of Examiners or constitution of a Committee for the purpose of holding
examination in each subject. Rule 28 provides that the question papers set by
the examiners shall be placed before the Commission to ensure conformity with
the required standard of examination and the Commission may moderate the
question papers or constitute a Committee to perform the work of moderation.
Rule 30 provides for advertisement of vacancies for which selections are to be
made and scrutiny of applications received. Rule 33 provides for the
determination of place, dates and time of examination and the centres for
examination. Rule 34 provides for the list of persons suitable to be appointed
as invigilators and appointment of invigilators. Rule 37 provides for
fictitious roll numbers (code numbers) to be allotted to each candidate before
the answer books are dispatched to the examiners for assessment. Rule 38
provides that the number of answer books to be sent to each examiner shall be
fixed by the Commission. Rule 44 requires the Secretary of the Commission to
take steps for tabulation of marks obtained by each candidate as soon as the
answer-scripts are received after valuation, after scrutiny of scripts, removal
of discrepancies and corrections. Rule 45 provides for random checking of the
tabulation to ensure correctness and accuracy of tabulation. Rule 47 provides
that the original roll numbers of candidates shall thereafter be restored to
the answer-scripts and for issue of interview letters. Rule 49 authorizes the
Commission to decide the number of candidates to be called for interview to
appear before a Board on any day.
50 provides that the interview marks awarded shall be kept in safe custody.
Rule 51 provides that mark-sheets shall be opened on the last day of interview
and immediately thereafter the marks of interview/personality test shall be
added to the marks obtained by the candidates in the written examination, and
thereafter on the basis of the total so obtained, the merit list shall be
prepared and placed before the Commission for final declaration of the result.
The proviso to Rule 51 provides that the Commission with a view to eliminate
variations in the ranks awarded to candidates at any time at any examination or
interview, adopt any method, device or formula which they consider proper for
the purpose. The Commission contends that having regard to the proviso to Rule
51 which specifically enables them to adopt any method, device or formula to
eliminate variations in the marks awarded to any at any examination, they are
entitled to adopt the scaling system to eliminate variations in marks.
The petitioners point out that the PSC
Procedure Rules were not made in consultation with the High Court. On the other
hand, the Judicial Service Rules, 2001 which came into effect from 1.7.2000,
were made in consultation with both Commission and the High Court. It is,
therefore, submitted that the Judicial Service Rules alone will regulate and
govern the recruitment of Civil Judges (Junior Division) including examinations
and interviews and the proviso to Rule 51 of PSC Procedure Rules will not apply
to recruitment of Civil Judges. Reliance is placed on the decisions of this
Court in State of Bihar v. Bal Mukund Sah [2000 (4) SCC
640], Union of India v. Hansoli Devi [2002 (7) SCC 273]
and Union of India v. Deoki Nandan Aggarwal [1992 Supp. 1 SCC 323] in regard to
interpretation of the Rules.
This question was considered briefly
by this Court in S. C. Dixit wherein it was held that the PSC Procedure Rules
made in exercise of power under the U.P. State Public Service Commission
(Regulation of Procedure and Conduct of Business) Act, 1974 give the guidelines
for any examination to be held by the Commission and therefore, all the
provisions of the said Rules will be applicable to an examination for
recruitment to judicial service also.
It is no doubt true that Judicial
Service Rules govern the recruitment to Judicial Service, having been made in
exercise of power under Article 234, in consultation with both the commission
and the High Court. It also provides what examinations should be conducted and
the maximum marks for each subject in the examination. But the Judicial Service
Rules entrust the function of conducting examinations to the Commission. The
Judicial Service Rules do not prescribe the manner and procedure for holding
the examination and valuation of answer-scripts and award of the final marks
and declaration of the results. Therefore, it is for the Commission to regulate
the manner in which it will conduct the examination and value the answer
scripts, subject, however, to the provisions of the Judicial Service Rules. If
the Commission has made Rules to regulate the procedure and conduct of the
examination, they will naturally apply to any examination conducted by it for
recruitment to any service, including the judicial service. But where the
Judicial Service Rules make a specific provision in regard to any aspect of
examination, such provision will prevail, and the provision of PSC Procedure
Rules, to the extent it is inconsistent with the Judicial Service Rules, will
be inapplicable. Further, if both the Rules have made provision in regard to a
particular matter, the PSC Procedure Rules will yield to the Judicial Service
The manner in which the list of
candidates as per merit should be prepared is provided both in the Judicial
Service Rules and the PSC Procedure Rules. Relevant portion of Rule 20(3) and
Note (i) of Appendix-II of the Judicial Service Rules and Rule 51 of the PSC
Procedure Rules providing for the aggregation of marks and preparation of the
merit list, are extracted below :- Judicial Service Rules PSC Procedure Rules.
20(3). The Commission then shall prepare a final list of selected candidates in
order of their proficiency as disclosed by aggregate of marks finally awarded
to each candidate in the written examination and the interview.
of Appendix-II. - Marks obtained in the interview will be added to the marks
obtained in the written papers and the candidates' place will depend on the
aggregate of the both.
51. The marks-sheets so obtained shall be opened on the last day of interview
and immediately there after the marks of interview/ personality test shall be
added to the marks obtained by the candidates in the written examination.
Thereafter, on the basis of the totals so obtained the merit list shall be
prepared and place before the Commission for final declaration of the result.
that the Commission may, with a view to eliminating variation in the marks
awarded to candidates at any examination or interview, adopt and method, device
or formula which they consider proper for the purpose.
emphasis supplied) As the field is occupied by Rule 20(3) and Note (i) of
Appendix-II of Judicial Service Rules, they will prevail over the general
provision in Rule 51 of PSC Procedure Rules.
Rule 20(3) provides that the final
list of selected candidates in order of their proficiency as disclosed by the
aggregate of 'marks finally awarded to each candidate in the written
examination and the interview". Note (i) to Appendix II of the Judicial
Service Rules provides that the "marks obtained in the interview"
will be added to "the marks obtained in the written papers" and that
the candidate's place will depend on the aggregate of both. Though Judicial
Service Rules refers to 'marks finally awarded', the said Rules do not contain
a provision similar to the proviso to Rule 51 of PSC Procedure Rules, enabling
the Commission to adopt any method, device or formula to eliminate variation in
the marks. It is not possible to read the proviso to Rule 51 or words to that
effect into Rule 20(3) or Note (i) of Appendix-II of Judicial Service Rules. It
is well settled that courts will not add words to a statute or read into the
statute words not in it. Even if the courts come to the conclusion that there
is any omission in the words used, it cannot make up the deficiency, where the
wording as it exists is clear and unambiguous. While the courts can adopt a
construction which will carry out the obvious intention of the legislative or
rule making authority, it cannot set at naught the legislative intent clearly
expressed in a statute or the rules.
Rule 20(3) and Note (i) of Appendix-II has to be read as they are without the
addition of the proviso to Rule 51 of PSC Procedure Rules. If so, what can be
taken into account for preparing final list of selected candidates, are 'marks
finally awarded to a candidate' in the written examination and the interview.
The marks assigned by the examiner are not necessarily the marks finally
awarded to a candidate. If there is any error in the marks awarded by the
examiner it can always be corrected by the Commission and the corrected marks
will be 'the final marks awarded to the candidate'. Where the Commission is of
the view that there is 'examiner variability' in the marks (due to strict or
liberal assessment of answer scripts) or improper assessment on account of
erratic or careless marking by an examiner, they can be corrected appropriately
by moderation. The moderation is either by adding (in the case of strict
examiners) or deducting (in the case of liberal examiners) a particular number
of marks which has been decided with reference to principles of moderation
applied. If there is erratic or careless marking, then moderation is by fresh
valuation by another examiner.
the marks assigned by the examiner as moderated will be the marks finally
awarded to the candidates or marks obtained by the candidates.
it has to be held, is inherent in the evaluation of answer scripts in any large
scale examination, where there are more than one examiner.
We cannot accept the contention of
the petitioner that the words "marks awarded" or "marks obtained
in the written papers" refers only to the actual marks awarded by the
examiner. 'Valuation' is a process which does not end on marks being awarded by
an Examiner. Award of marks by the Examiner is only one stage of the process of
valuation. Moderation when employed by the examining authority, becomes part of
the process of valuation and the marks awarded on moderation become the final
marks of the candidate. In fact Rule 20(3) specifically refers to the 'marks
finally awarded to each candidate in the written examination', thereby implying
that the marks awarded by the examiner can be altered by moderation.
But the question is whether the raw
marks which are converted into scaled scores on an artificial scale which
assumed variables (assumed mean marks and assumed standard deviation) can be
considered as 'marks finally awarded' or 'marks obtained'. Scaled scores are
not marks awarded to a candidate in a written examination, but a figure arrived
at for the purpose of being placed on a common scale. It can vary with
reference to two arbitrarily fixed variables, namely 'Assumed Mean' and
'Assumed Standard Mean'.
have dealt with this aspect in greater detail while dealing with question
(iii). For the reasons given while considering question (iii), we hold that
'scaled scores' or 'scaled marks' cannot be considered to be 'marks awarded to
a candidate in the written examination'. Therefore, scaling violates Rule 20(3)
and Note (i) of Appendix-II of Judicial Service Rules.
Rule 20 of Judicial Service Rules
requires the Commission to call for interview such number of candidates, who in
its opinion have secured the minimum marks fixed by it. Because of application
of scaling system by the Commission, it has not been possible for the
Commission to fix such minimum marks either for individual subjects or for the
aggregate. In the absence of minimum marks, several candidates who secured less
than 30% in a subject have been selected. We note below by way of illustration,
the particulars of some candidates who have been selected in spite of securing
less than 20% in a subject :
Actual Marks (in %) Scaled Marks Rank in Selection 1.
032373 002454 008097 017808 010139 012721 002831 004998 Language Language Language
Language Law-I Language Law-I Language Language 8% 8% 11% 13% 13% 14% 15% 16%
17% 79 79 79 89 76 85 100 89 91 225 290 196 85 317 333 172 263 161 Thus scaling
system adopted by the Commission, contravenes Rule 20(1) also.
Question (iii) :
When a large number of candidates
appear for an examination, it is necessary to have uniformity and consistency
in valuation of the answer- scripts. Where the number of candidates taking the
examination are limited and only one examiner (preferably the paper-setter
himself) evaluates the answer-scripts, it is to be assumed that there will be
uniformity in the valuation. But where a large number of candidates take the
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 among several examiners for valuation with the paper-setter (or
other senior person) acting as the Head Examiner. When more than one examiner
evaluate the answer-scripts relating to a subject, the subjectivity of the
respective examiner will creep into the marks awarded by him to the answer-
scripts allotted to him for valuation. Each examiner will apply his own
yardstick to assess the answer-scripts. Inevitably therefore, even when
experienced examiners receive equal batches of answer scripts, there is
difference in average marks and the range of marks awarded, thereby affecting
the merit of individual candidates. This apart, there is 'Hawk- Dove' effect.
Some examiners are liberal in valuation and tend to award more marks. Some
examiners are strict and tend to give less marks. Some may be moderate and
balanced in awarding marks. Even among those who are liberal or those who are
strict, there may be variance in the degree of strictness or liberality. This
means that if the same answer-script is given to different examiners, there is
all likelihood of different marks being assigned.
very well written answer-script goes to a strict examiner and a mediocre
answer-script goes to a liberal examiner, the mediocre answer-script may be
awarded more marks than the excellent answer-script. In other words, there is
'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal
examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'.
Therefore, there is a need to evolve a procedure to ensure uniformity inter se
the Examiners so that the effect of 'examiner subjectivity' or 'examiner
variability' is minimised. The procedure adopted to reduce examiner
subjectivity or variability is known as moderation. The classic method of
moderation is as follows :
of the subject normally acts as the Head Examiner for the subject. He is
selected from amongst senior academicians/scholars/senior civil
servants/Judges. Where the case of a large number of candidates, more than one
examiner is appointed and each of them is allotted around 300 answer-scripts
uniformity in valuation, where more than one examiner is involved, a meeting of
the Head Examiner with all the examiners is held soon after the examination.
They discuss thoroughly the question paper, the possible answers and the weightage
to be given to various aspects of the answers. They also carry out a sample
valuation in the light of their discussions. The sample valuation of scripts by
each of them is reviewed by the Head Examiner and variations in assigning marks
are further discussed. After such discussions, a consensus is arrived at in
regard to the norms of valuation to be adopted. On that basis, the examiners
are required to complete the valuation of answer scripts. But this by itself,
does not bring about uniformity of assessment inter se the examiners. In spite
of the norms agreed, many examiners tend to deviate from the expected or agreed
norms, as their caution is overtaken by their propensity for strictness or
liberality or erraticism or carelessness during the course of valuation.
Therefore, certain further corrective steps become necessary.
valuation is completed by the examiners, the Head Examiner conducts a random
sample survey of the corrected answer scripts to verify whether the norms
evolved in the meetings of examiner have actually been followed by the
examiners. The process of random sampling usually consists of scrutiny of some
top level answer scripts and some answer books selected at random from the
batches of answer scripts valued by each examiner. The top level answer books
of each examiner are revalued by the Head Examiner who carries out such
corrections or alterations in the award of marks as he, in his judgment,
considers best, to achieve uniformity. (For this purpose, if necessary certain
statistics like distribution of candidates in various marks ranges, the average
percentage of marks, the highest and lowest award of marks etc. may also be
prepared in respect of the valuation of each examiner.)
ascertaining or assessing the standards adopted by each examiner, the Head
Examiner may confirm the award of marks without any change if the examiner has
followed the agreed norms, or suggest upward or downward moderation, the
quantum of moderation varying according to the degree of liberality or
strictness in marking.
regard to the top level answer books revalued by the Head Examiner, his award
of marks is accepted as final. As regards the other answer books below the top
level, to achieve maximum measure of uniformity inter se the examiners, the
awards are moderated as per the recommendations made by the Head Examiner.
If in the
opinion of the Head Examiner there has been erratic or careless marking by any
examiner, for which it is not feasible to have any standard moderation, the
answer scripts valued by such examiner are revalued either by the Head Examiner
or any other Examiner who is found to have followed the agreed norms.
Where the number
of candidates is very large and the examiners are numerous, it may be difficult
for one Head Examiner to assess the work of all the Examiners. In such a
situation, one more level of Examiners is introduced. For every ten or twenty
examiners, there will be a Head Examiner who checks the random samples as
above. The work of the Head Examiners, in turn, is checked by a Chief Examiner
to ensure proper results.
above procedure of 'moderation' would bring in considerable uniformity and
consistency. 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.
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 competitive situation where candidates have the
option of selecting one or few among a variety of heterogenous 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 a mark 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 to 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.
may happens when for example, in a Civil Service examination, where Physics and
Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriate
to a degree level and examiner 'B' sets a paper in Chemistry appropriate for
matriculate level. In view of these peculiarities, there is a need to bring the
assessment or valuation to a common scale so that the inter se merit of candidates
who have opted for different subjects, can be ascertained. The moderation
procedure referred to in the earlier para will solve only the problem of
examiner variability, where the examiners are many, but valuation of answer
scripts is in respect of a single subject.
is no answer where the problem is to find inter se merit across several
subjects, that is, where candidates take examination in different subjects. To
solve the problem of inter se merit across different subjects, statistical
experts have evolved a method known as scaling, that is creation of scaled
score. Scaling places the scores from different tests or test forms on to a
common scale. There are different methods of statistical scoring.
score method, linear standard score method, normalized equi- percentile method
are some of the recognized methods for scaling.
A. Edwin Harper Jr. & V Vidya Sagar
Misra in their publication "Research on Examinations in India" have tried to explain and
define scaling. We may usefully borrow the same. A degree 'Fahrenheit' is
different from a degree 'Centigrade'. Though both express temperature in
degrees, the 'degree' is different for the two scales. What is 40 Degrees in
Centigrade scale is 104 Degrees in Fahrenheit scale. Similarly, when marks are
assigned to answer-scripts in different papers, say by Examiner 'A' in Geometry
and Examiner 'B' in History, the meaning or value of the 'mark' is different.
Scaling is the process which brings the mark awarded by Examiner 'A' in regard
to Geometry scale and the mark awarded by Examiner 'B' in regard to History
scale, to a common scale. Scaling is the exercise of putting the marks which are
the results of different scales adopted in different subjects by different
examiners into a common scale so as to permit comparison of inter se merit. By
this exercise, the raw marks awarded by the examiner in different subjects is
converted to a 'score' on a common scale by applying a statistical formula. The
'raw marks' when converted to a common scale are known as the 'scaled marks'.
Scaling process, whereby raw marks in different subjects are adjusted to a
common scale, is a recognized method of ensuring uniformity inter se among the
candidates who have taken examinations in different subjects, as, for example,
the Civil Services Examination.
The Union Public Service Commission
('UPSC' for short) conducts the largest number of examinations providing choice
of subjects. When assessing inter se merit, it takes recourse to scaling only
in civil service preliminary examination where candidates have the choice to
opt for any one paper out of 23 optional papers and where the question papers
are of objective type and the answer scripts are evaluated by computerized/
scanners. In regard to compulsory papers which are of descriptive
(conventional) type, valuation is done manually and scaling is not resorted to.
Like UPSC, most examining authorities appear to take the view that moderation
is the appropriate method to bring about uniformity in valuation where several
examiners manually evaluate answer-scripts of descriptive/ conventional type
question papers in regard to same subject; and that scaling should be resorted
only where a common merit list has to be prepared in regard to candidates who
have taken examination of different subjects, in pursuance of an option given
But some Examining Authorities, like
the Commission are of the view that scaling can be used, not only where there
is a need to find a common base across different subjects (that is bringing the
performance in different subjects to a common scale), but also as an
alternative to moderation, to reduce examiner variability (that is where different
examiners evaluate answer scripts relating to the same subject).
Let us now examine the reasons as to
why the Commission adopted 'scaling' instead of moderation. The Committee states
that the anomalies caused on account of 'examiner variability' was engaging its
attention. It found that a candidate's score may depend upon the "chance'
factor of whether his answers script is assessed by a lenient or a strict
examiner; and that in an extreme case, while a candidate of a given merit may
get a First Class/Division, another student of equal merit may be declared to
have failed. Therefore, the Commission constituted a Committee to carry out an indepth
study into the matter and suggest appropriate means to ensure that the
evaluation was on more equitable basis. The Committee by its Report dated
2.9.1996 suggested statistical scaling system as the remedy and recommended the
linear standard score method which operates on the following formula :
Assumed mean + [ (X-M) x Assumed S.D.] SD Z= is the Scaled Score.
X = is
the Raw mark.
M = is
the mean of Raw Marks of the group/subject.
is the Standard Deviation of Raw Marks of the group/subject.
Committee suggested the following 'assumptions' or 'parameters' for applying
the formula :
will be taken as Half of the maximum marks of the group/subject.
will be taken as one-fifth of the assumed mean.
If scaled score
is less than zero after scaling, then candidates will be allotted zero marks in
the said group/subject.
If scaled score
after scaling is more than maximum marks, then candidate will be allotted
maximum marks in the said group/subject.
Eversince then, the Commission has
been following the statistical scaling. According to the Commission, the
scaling method is rational, scientific and reasonable and would lead to
assessment of inter se merit of the candidates in a just and proper manner. The
use of the said method was reviewed by an Expert Committee on 31.7.2000 and it
was reiterated that the formula and method presently used for scaling can be
continued to be used in future also and there was no need to change the same.
Thus the scaling is continued.
We may at this stage refer to the
condition to be fulfilled, for scaling to be effective. For this purpose, we
are referring to passages from the Authors/Experts relied on by the Commission
Harper & Vidya Sagar Misra (in 'Research on Examinations in India) make it clear
that scaling will be useful and effective only if the distribution of marks in
the batch of answer scripts sent to each examiner is approximately the same as
the distribution of marks in the batch of answer scripts sent to every other
30.2 A similar view
is expressed by J.P. Guilford & Benjamin Fruchter (in their treatise
'Fundamental Statistics in Psychology and Education' page 476-477). They say
that two conditions are to be satisfied to apply scaling :
of students from which the distributions of scores arose must be assumed to
have equal means and dispersions in all the abilities measured by the different
the form of
distribution, in terms of skewness and kurtosis, must be very similar from one
ability to another. He proceeds to refer to the disadvantages of scaling thus :
we have no ideal scales common to all these tests, with measurements which
would tell us about these population parameters.
selective features might have brought about a higher mean, a narrower
dispersion, and a negatively skewed distribution on the actual continuum of
ability measured by one test, and a lower mean, a wider dispersion, and a
symmetrical distribution on the continuum of another ability represented by
another test. Since we can never know definitely about these features for any
given population, in common scaling we often have to proceed on the assumption
that actual means, standard deviations, and form of distribution are uniform
for all abilities measured. In spite of these limitations, it is almost certain
that derived scales provide more nearly comparable scales than do raw
scores." 30.3) V. Natarajan & K. Gunasekaran in their treatise
'Scaling Techniques what, why and how', have warned :
one studies the literature in this field, he can find that there are a number
of methods available ranging from simple to complex. Each has its own merits
and demerits and can be adopted only under certain conditions or making certain
assumptions." The Authors describe the Linear Standard Score method (which
is used by the Commission) thus :
Z-score (Standard score) which has a mean of 'zero' and standard deviation
'one', the linear standard score has some pre-determined mean and standard
choice of the mean and standard deviations is purely arbitrary.
has its own advantages and disadvantages and useful for specific purpose only.
It may be emphasized here that both the standard scores and linear standard
scores retain the shape of the original distribution of raw marks. Therefore,
if the original distribution is 'normally' distributed, then any type of Linear
Standard Scores will also be 'normally' distributed.
the Normal Curve as the model, various points in other scales are plotted. It
should be, however, noted that the kind of relationship shown in Figure -2
between normal curve vis-`-vis the other scores are valid only if the raw score
distribution can be assumed to approximately normally distributed.
supplied) 30.4) The Kothari Report, 1976 ('Policy & Selection Methods'
published by UPSC) while referring to scaling in regard to papers in different
subjects, by using appropriate statistical techniques as a recognized procedure
for improving the reliability of examination as a tool for selection, however
cautions that the method should be under continuous review and evaluation, that
continuing improvement in the light of experience and new developments, taking
into account advancement of knowledge, is essential.
The entire basis for applying
scaling in regard to marks awarded by different examiners in the same subject
is the assumption that all answer scripts have been thoroughly mixed, and that
equal number of answer scripts drawn at random and sent to each examiner for
valuation will contain answer scripts of candidates with equal distribution of
abilities. When the distribution of abilities in each batch is approximately
equal, the mean marks and standard deviation of the scaled marks of each batch
will be identical. To put it differently, if each examiner is sent 300 answer
scripts and each batch of 300 candidates have almost equal number of good,
average and poor standard students, they can all be brought to a common scale
for comparing their merit inter se. But we find that there is no such broad
equal distribution in the examination with which we are concerned.
find from the Tables furnished that the range of marks awarded and the range of
deviation have varied enormously from examiner to examiner in the same subject.
We extract below these ranges, which demonstrate the wide diversity, in turn
indicating that scaling method was inappropriate for bringing uniformity in valuation
No. of Examiner No. of Scripts Examined (range) Mean Marks of the examiner
(range) Standard Deviation of marks allotted (range) Minimum Marks (awarded by
the Examiner) Maximum Marks (awarded by the Examiner)
18 14 11 10 14 50 to 800 231 to 800 300 to 900 200 to 1402 150 to 1000
to 83.91 37.51 to 82.43 30.83 to 56.90 70.57 to 94.40 63.14 to 86.74 12.24 to
20.49 14.16 to 31.75 12.45 to 17.85 11.48 to 20.05 13.16 to 19.54 10 to 43 0 to
30 0 to 10 0 to 40 0 to 31 84 to 126 105 to 145 83 to 113 113 to 132 99 to 134
The formula heavily relies upon the
standard deviation among the candidates in a given pool or batch. The standard
deviation is a measure of the range and distribution of marks awarded by an
examiner. It depends on the set of students in any given pool. If an examiner
has a set of extremely good or poor standard candidates and another examiner
has a more even set of average candidates, the standard deviation would be high
for the first examiner and low for the second examiner, having regard to the
range of distribution of marks. Consequently the scaled marks of a candidate
calculated on a formula heavily relying on standard deviation, would be based
on the cumulative standard deviation of all the candidates in his pool rather
than the strictness or liberality of the examiner. Therefore, standard
deviation has only a bearing on ascertaining the range of capabilities of the
candidates in a given examination and in no way eliminates the anomalies
arising out of the strictness or liberality of the examiner. We may demonstrate
the fact that the scaled marks vary with reference to the extent of standard
deviation (and has nothing to do with the issue of strictness or liberality of
the examiner), from the following examples :
Marks Average (Mean) Marks Strict Examiner No. I Strict Examiner No. II
Standard Deviation Scaled Marks Standard Deviation Scaled Marks 0 5 20 50 50 50
15 15 15 33 40 60 25 25 25 60 64 76 Actual Marks Average (Mean) Marks Liberal
Examiner No. I Liberal Examiner No. II Standard Deviation Scaled Marks Standard
Deviation Scaled Marks 50 120 150 90 90 90 15 15 15 47 140 180 25 25 25 68 124
148 The reason given for introducing scaling is to cure the disparity on
account of strictness or liberality of the examiners. But the effect of the
scaling formula adopted by Commission is to average the marks of a batch of
candidates and convert the raw marks of each candidate in the batch into scaled
marks with reference to the average marks of the batch and the standard
deviation. The scaling formula therefore, does not address or rectify the
effect of strictness or liberality of the examiner. The scaling formula is more
suited and appropriate to find a common base and inter se merit, where
candidates take examinations in different subjects. As the scaling formula has
no nexus or relevance to give a solution to the problem of eliminating the
variation or deviation in the standard of valuation of answer scripts by
different examiners either on account of strictness or liberality, it has to be
concluded that scaling is based on irrelevant considerations and ignores
We will next refer to apparent
anomalies which show scaling of marks is arbitrary. The Commission has
furnished five Tables relating to the five subjects showing the following
The number of
Number of answer
scripts allotted to each examiner;
Mean marks of each
deviation of the marks allotted by each examiner;
marks secured by a candidate in the batch of answer-scripts corrected by each
marks secured by a candidate in the batch of answer-scripts corrected by each
examiner. The Commission has also furnished the tabulation of scaled and actual
marks of all the candidates. An examination of the particulars furnished
discloses several glaring anomalies.
Award of high
scaled marks to those who secured zero marks :
find from Table-II (furnished by the Commission) that the answer scripts
relating to Language Paper were distributed among 14 examiners. Several
candidates whose papers were evaluated by examiners 2, 3, 4, 5, 6, 8, 13, &
14 have secured zero marks. Evidently only those who did not attempt any answer
or had absolutely no knowledge of either Hindi or English would have got zero
marks. But such candidates who actually secured zero marks have strangely been
assigned scaled marks ranging from 36 to 67, depending upon the examiner, in
whose pool, they fell. We give below scaled marks obtained by different
candidates who secured zero marks with reference to the examiners.
: Language Examiner No.
Marks of the candidate Scaled Marks 2 0 (100)+(0-66.58 x20) = 44 23.73 3 0
100+(0-55.29 x20) = 47 20.91 4 0 100+(0-74.88 x20) = 0 (-5 to be taken as zero)
14.20 5 0 100+(0-44.48 x20) = 58 20.06 6 0 100+(0-61.52 x20) = 50 24.8 8 0
100+(0-52.86 x20) = 67 31.75 13 0 100+(0-43.11 x 20) = 66 25.50 14 0 100+(0-54.77
x20) = 36 17.02 But unfortunately in the same subject, candidates who secured
32 to 30 marks, assessed by Examiner No.10, got their marks reduced to 31 to 28
on scaling. (Mean being 80.93 and SD being 14.16). The devastating effect of
awarding such high scaled marks, that too ranging from 36 to 67, to those who
have secured '0' need not be stressed. In fact UPSC has clarified that whenever
they follow scaling procedure, no scaling is applied to '0' marks.
the Commission had not applied its mind to this aspect when applying 'scaling'.
marks of persons who secured very high marks.
scaling has equalized the different high end marks of candidates, where the
mean marks is low. To give a hypothetical example if the mean marks is 70 and
the standard deviation is 15, all candidates securing raw marks 145 to 200 will
be assigned the equal scaled marks of 200. If the mean marks are 60 and the
standard deviation is 15, all candidates securing 135 to 200 will be awarded
the scaled marks of 200. Similarly, if the mean marks are 80 and the standard
deviation is 20, all candidates securing raw marks between 180 to 200 will be
awarded equal scaled marks of 200. In addition to the above hypothetical
examples, we may give a concrete example. In regard to Examiner No. 14 in
Language Paper, Table-II shows that the highest marks secured is 145. In regard
to that examiner, the mean marks is 54.77 and standard deviation is 17.02. By
applying the scaling formula, the marks of 145 secured by that candidate
becomes 206 which is taken as 200 as per the formula. All candidates who were
awarded raw marks of 140 to 145 by Examiner No. 14 in Language paper will be
assigned the equal scaled marks of 200. This leads to unequals being treated as
equals. In case of candidates securing marks in higher ranges on scaling, there
is likelihood of their marks being equalised with those who secured lesser
marks thereby losing the benefit of their higher marks and inter se merit.
marks of persons who secured low marks.
scaling has also equalized the different low end marks of candidates, where the
mean marks is high. To give a hypothetical example, if the mean marks is 95 and
the standard deviation is 11, then all candidates securing 40 and below will be
awarded only '0'. To give a concrete example, in regard to Examiner No. 7 in
Law Paper-II, one candidate has secured 32. In respect of that examiner, the
mean marks is 94.4 and standard deviation is 11.48. By applying the scaling
formula, the scaled marks of the said candidate who secured 32 becomes '0'. Not
only that. Scaled marks of all candidates who were given raw marks of 37 and
less by that examiner, becomes '0'. This leads to unequals being treated as
equals and candidates who secured marks in the lower ranges (from that
examiner) losing out to candidates who performed much worse but were in the
pool of other examiners.
mixing of answer scripts and improper distribution of answer scripts :
basic requirement for scaling is that all answer scripts will be mixed
thoroughly and that approximately equal number of answer scripts drawn at
random will be allotted to each examiner so as to infer equal distribution of
ability of candidates in each batch of answer scripts. But that was apparently
not done by the Commission. We give below the details of distribution of answer
scripts which demonstrate that they were nowhere equal :
Knowledge Paper (18 Examiners) The distribution of answer scripts is : 50
papers (2 examiners), 100 (3 examiners), 150 (1 examiner), 200 (2 examiners),
250 (2 examiners), 300 (1 examiner), 350 (1 examiner), 400 (1 examiner), 500 (2
examiners), 648 (1 examiners) and 800 (2 examiners).
Paper (14 Examiners) The distribution of answer scripts is :
papers (1 examiner), 300 (5 examiners), 350 (1 examiner), 400 (2 examiners),
450 (3 examiners), 700 (1 examiner), 800 (1 examiner).
Paper-I (11 Examiners) - The distribution of answer scripts is : 100 papers (1
examiner), 300 (2 examiners), 400 (2 examiners), 450 (1 examiner), 600 (1
examiner), 700 (1 examiner), 775 (1 examiner), 800 (1 examiner), 900 (1
paper-II (10 examiners) - The distribution of answer scripts is : 200 papers (1
examiner), 300 (1 examiner), 350 (1 examiner), 450 (1 examiner), 500 (2
examiners), 650 (2 examiners), 700 (1 examiner), 1402 (1 examiner).
paper-III (14 examiners) The distribution of answer scripts is : 150 papers (3
examiners), 200 (1 examiner), 250 (1 examiner), 300 (1 examiner), 350 (2
examiners), 400 (1 examiner), 444 (1 examiner), 500 (1 examiner), 550 (1
examiner), 900 (1 examiner), 1000 (1 examiner).
large variation in the number of answer scripts allotted to each examiner has a
bearing on the mean marks and the standard deviation. The fact that there was
no proper randomization and distribution is also evident from the fact that
though approximately equal number appeared in each segment of 10000 from among
the roll nos. 1 to 51524, selection is inexplicably high in the first segment
of roll nos. 1 to 10000. The particulars of roll number segments and the number
of persons who appeared for the main examination from each segment are as follows
Numbers No. of Persons
10001 to 20000
20001 to 30000
30001 to 40000
40001 to 50000
50001 to 51524
170 If there was proper randomization and distribution leading to equal
distribution of the candidate capacity, it would have been expected that the
number of selected candidates also would have been proportionate to each segment.
But we find that out of 347 candidates selected, as many as 139 candidates fall
in first segment alone (within Roll nos. 1 to 10000) and 208 fall in the next
five segments put together. Significantly out of the top 150 selected
candidates, as many as 68 candidates also fall within Roll nos. 1 to 10000. Be
that as it may.
Low raw marks
were further lowered (or made into '0') and higher raw marks were further
increased due to scaling Example : Law Paper-II.
No. 5 : 33 became 9; and 120 became 146 Examiner No. 6 : All marks between 9
and 1 became 0; and 119 became 139 Examiner No. 7 : All marks between 37 and 1
became 0; and 132 became 165 Examiner No. 9 : 4 became 0; and 122 became 156 In
contrast, in some cases all raw marks whether low or high, became higher.
: Law Paper-I.
No. 4 : 1 became 56; and 102 became 177.
No. 6 : 9 became 66; and 85 became 184.
No. 9 : 1 became 60; and 107 became 184.
No. 10 : 9 became 49; and 83 became 156.
petitioners have referred to certain other absurdities arising from the
application of scaling, with reference to the results of 2000 examination which
was the subject matter of S.C. Dixit. (For example, it was demonstrated that in
some cases, the low marks awarded by liberal examiners had increased and high
marks awarded by strict examiners had reduced, thereby achieving the opposite
of the goal sought to be achieved -- that marks given by liberal examiners
should be reduced and marks given by strict examiners should be increased). We
however consider it appropriate to rely only on the anomalies/absurdities
demonstrable with reference to the 2003 examination which is the subject matter
of these petitions, and do not propose to rely on the anomalies noticed in
regard to the 2000 examination.
When selections are made on the
basis of the marks awarded, and the inter se ranking depends on the marks
awarded, treating unequals equally, or giving huge marks to candidates who have
secured zero marks in some subjects make the process wholly irrational,
virtually bordering on arbitrariness. It is no doubt true that such
irrationality may adversely affect only those cases which are at either end of
the spectrum, and if they are excluded, by and large the scaling system may be
functional. But if the extreme cases are even 20 out of 5000 for each of the
subjects, it becomes 100 for 5 subjects, which means that the results of as
many as 100 are likely to be affected. It may be more also. In that process, at
least 5% to 10% of the vacancies are likely to be filled up by less meritorious
candidates. This will lead to considerable heart-burn and dissatisfaction. When
the object of the selection process is to try to select the best, and even one
mark may make the difference between selection or non-selection, the system of
scaling which has the effect of either reducing or increasing the marks in an
arbitrary manner will lead to unjust results. This is in addition to the main
disadvantage that scaling does not remedy the ill-effects of examiner
variability arising out of strictness or liberality in valuation.
The illustrations given above with
reference to the 2003 examinations clearly demonstrate the arbitrariness and
irrationality of scaling, particularly in cases falling at the two ends of the
spectrum. We, therefore, hold that scaling system as adopted by the Commission
is unsuited for the Civil Judge (Junior Division) Examination.
We may now summarize the position
regarding scaling thus :
situations warrant adoption of scaling techniques.
There are number
of methods of statistical scaling, some simple and some complex. Each method or
system has its merits and demerits and can be adopted only under certain
conditions or making certain assumptions.
Scaling will be
useful and effective only if the distribution of marks in the batch of answer
scripts sent to each examiner is approximately the same as the distribution of
marks in the batch of answer scripts sent to every other examiner.
In the Linear
Standard Method, there is no guarantee that the range of scores at various
levels will yield candidates of comparative ability.
method should be under continuous review and evaluation and improvement, if it
is to be a reliable tool in the selection process.
Scaling may, to a
limited extent, be successful in eliminating the general variation which exists
from examiner to examiner, but not a solution to solve examiner variability
arising from the 'hawk-dove' effect (strict/liberal valuation).
material placed does not disclose that the Commission or its expert committee
have kept these factors in view in determining the system of scaling. We have
already demonstrated the anomalies/absurdities arising from the scaling system
used. The Commission will have to identify a suitable system of evaluation, if
necessary by appointing another Committee of Experts. Till such new system is
in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications.
We may now refer to the decision of
this Court in S. C. Dixit. The validity of scaling was considered in paras 31
to 33 of the judgment extracted below :
"There is a vast percentage
difference in awarding of marks between each set of examiners and this was
sought to be minimized by applying the scaling formula. If scaling method had
not been used, only those candidates whose answer-sheets were examined by
liberal examiners alone would get selected and the candidates whose
answer-sheets were examined by strict examiners would be completely excluded,
though the standard of their answers may be to some extent similar. The scaling
system was adopted with a view to eliminate the inconsistency in the marking
standards of the examiners. The counsel for the respondents could not
demonstrate that the adoption of scaling system has in any way caused injustice
to any meritorious candidate. If any candidate had secured higher marks in the
written examination, even by applying scaling formula, he would still be
The Division Bench of the High Court
observed that the process of scaling was done examiner-wise only and the
scaling formula did not take into consideration the average of mean of all the
candidates in one particular paper but took the mean of only that group of
candidates which has been examined by one single examiner. The counsel for U.P.
PSC submitted that the observation made by the High Court is incorrect. The
scaling formula was adopted to remove the disparity in the evaluation of 14
examiners who participated in the evaluation of answer-sheets and the details
have also been furnished as to how the scaling formula was adopted and applied.
Therefore, we do not think that the observation of the Division Bench that the
Commission did not take care of varying standards which may have been applied
by different examiners but has sought to reduce the variation of the marks
awarded by the same examiner to different candidates whose answer-sheets had
been examined, is correct. The Division Bench was of the view that as a result
of scaling, the marks of the candidates who had secured zero marks were
enhanced to 18 and this was illegal and thus affected the selection process.
The finding is to be understood to mean as to how the scaling system was
applied. 18 marks were given notionally to a candidate who secured zero marks
so as to indicate the variation in marks secured by the candidates and to fix
the mean marks.
In that view of the matter, we do
not think that the application of scaling formula to the examinations in
question was either arbitrary or illegal. The selection of the candidates was
done in a better way.
this formula was adopted by U.P. PSC after an expert study and in such matters,
the court cannot sit in judgment and interfere with the same unless it is
proved that it was an arbitrary and unreasonable exercise of power and the
selection itself was done contrary to the Rules.
the agency conducting the examination has to consider as to which method should
be preferred and adopted having regard to the myriad situations that may arise
before them." S. C. Dixit, therefore, upheld scaling on two conclusions,
that the scaling
formula was adopted by the Commission after an expert study and in such
matters, court will not interfere unless it is proved to be arbitrary and
system adopted by the Commission eliminated the inconsistency arising on
account of examiner variability (differences due to evaluation by strict
examiners and liberal examiners). As scaling was a recognized method to bring
raw marks in different subjects to a common scale and as the Commission
submitted that they introduced scaling after a scientific study by experts,
this Court apparently did not want to interfere. This Court was also being
conscious that any new method, when introduced, required corrections and
adjustments from time to time and should not be rejected at the threshold as
unworkable. But we have found after an examination of the manner in which
scaling system has been introduced and the effect thereof on the present
examination, that the system is not suitable. We have also concluded that there
was no proper or adequate study before introduction of scaling and the scaling
system which is primarily intended for preparing a common merit list in regard
to candidates who take examinations in different optional subjects, has been
inappropriately and mechanically applied to a situation where the need is to
eliminate examiner variability on account of strict/liberal valuation. We have
found that the scaling system adopted by the Commission leads to irrational
results, and does not offer a solution for examiner variability arising from
strict/liberal examiners. Therefore, it can be said that neither of the two
assumptions made in S.C. Dixit can validly continue to apply to the type of
examination with which we are concerned. We are therefore of the view that the
approval of the scaling system in S.C. Dixit is no longer valid.
Learned counsel for the Commission
contended that scaling has been accepted as a standard method of evaluation in
the following decisions and therefore it should be approved :-
Goradia vs. Union of India [1987 (1) Guj.LR 157], upheld by this Court by order
dated 11.3.1987 in SLP (C) No. 14000/1986.
Muhesh Kumar Khandelwal
vs. State of Rajasthan [1994 (1) Raj.LR 533] upheld by
this Court by order dated 22.1.1996 in SLP(c) No. 15682-15684 of 1994.
vs. Karnataka Public Service Commission [2005(12) SCC 688).
the three cases related to moderation and not scaling. There are, however,
passing references to scaling as one of the methods to achieve common standard
of assessment. The fact that scaling is a standard method of assessment, when a
common base has to be found for comparative assessment of candidates taking examinations
in different optional subjects, is not in dispute. In fact the Commission may
continue to adopt the said system of scaling, where a comparative assessment is
to be made of candidates having option to take different subjects. The question
is whether scaling, in particular, linear standard scaling system as adopted by
the Commission, is a suitable process to eliminate 'examiner variability' when
different examiners assess the answer scripts relating to the same subject.
of the three decisions is of any assistance to approve the use of method of
'scaling' used by the Commission.
Learned counsel for the Commission
also referred to several decisions in support of its contention that courts
will be slow to interfere with matters affecting policy requiring technical
expertise and leave them for decision of experts. (State of U.P. v. Renusagar
Power Co. Ltd. - 1988 (4) SCC 59, Tata Iron & Steel Co. Ltd. v. Union of
India 1996 (9) SCC 709, Federation of Railway Officers Association v. Union of
India 2003 (4) SCC 289). There can be no doubt about the said principle. But
manifest arbitrariness and irrationality is an exception to the said principle.
Therefore, the said decisions are of no avail.
We should, however, record the fair
submission on behalf of the Commission that it is not irrevocably committed to
any particular system and will adopt a different or better system if the
present system is found to be defective.
Point No. (iv).
The petitioners have requested that
their petitions should be treated as being in public interest and the entire
selection process in regard to Civil Judge (Junior Division) Examination, 2003
should be set aside. We are unable to accept the said contention. What has been
made out is certain inherent defects of a particular scaling system when
applied to the selection process of the Civil Judges (Junior Division) where
the problem is one of examiner variability (strict/liberal examiners). Neither mala
fides nor any other irregularities in the process of selection is made out. The
Commission has acted bona fide in proceeding with the selection and neither the
High Court nor the State Government had any grievance in regard to selections.
In fact, the scaling system applied had the seal of approval of this Court in
regard to the previous selection in S.C. Dixit (supra). The selected candidates
have also been appointed and functioning as Judicial Officers. Further as
noticed above, the scaling system adopted by the Commission has led to
irrational and arbitrary results only in cases falling at the ends of the
spectrum, and by and large did not affect the major portion of the selection.
therefore, direct that our decision holding that the scaling system adopted by
the Commission is unsuited in regard to Civil Judge (Junior Division)
Examination and directing moderation, will be prospective in its application
and will not affect the selections and appointments already made in pursuance
of the 2003 Examination.
42. However, in so far as the
petitioners are concerned, we deem it proper to issue the following directions
to do complete justice on the facts of the case :
If the aggregate
of raw marks in the written examination and the marks in the interview of any
petitioner is less than that of the last selected candidate in the respective
category, he will not be entitled to any relief (for example, the petitioners
in WP(C) No. 165/2005 belonging to the Category 'BC' have secured raw marks of
361 and 377 respectively in the written examinations, whereas the last five of
the selected candidates in that category have secured raw marks of 390, 391,
397, 438 and 428 respectively. Even after adding the interview marks, the marks
of the petitioners in W.P. [C] No.165/2005 is less than the marks of the
Where the aggregate
of raw marks in the written examination and the interview marks of any
petitioner, is more than the aggregate of the raw marks in the written
examination and interview marks of the last selected candidate in his category,
he shall be considered for appointment in the respective category by counting
his appointment against future vacancies. (For example, we find that petitioner
Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw
marks which is more than the raw marks secured by the last five selected
candidates [347, 337, 336, 383 and 335] under the SC category and even after
adding the interview marks, her marks are more than the five selected
candidates. Hence, she should be considered for appointment). This relief will
be available only to such of the petitioners who have approached this Court and
the High Court before 31st
The petitions are allowed in part