PRANAV VERMA & OTHERS versus THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH & ANR.

PRANAV VERMA & OTHERS

THE REGISTRAR GENERAL OF THE HIGH COURT OFPUNJAB AND HARYANA AT CHANDIGARH & ANR.

(Writ Petition (Civil) No. 565 of 2019)

DECEMBER 13, 2019

[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]

Service Law: Selection – Interference with selection process— Main (Written) Examination of Civil Judge wherein total 1195candidates appeared and only 9 cleared the exam – Unsuccessfulcandidates challenging the entire selection process and evaluationmethod adopted therein and sought quashing of the result and re-evaluation by independent expert Committee – Held: Nodiscriminatory or malafide practice was undertaken whileconducting the exam or its following processes – Officials of theHigh Court ensured adequate security measures – Procedure ofevaluation was ‘uniform’ – Every candidate’s answers were markedon same parameters by the same examiner – There was no examinervariability but marking and evaluation method was strict but it wasso for everyone, thus, the option of moderation is applied –Alternative II of the Report by Justice Sikri is adopted, awarding20 marks in Civil Law I and 10 marks in Civil law II – Prayer for re-evaluation by an Independent Expert Committee cannot be accepted– Also petitioners’ plea that marks of the Main Exam should bedisclosed before conducting viva-voce, cannot be accepted sincethat would invite bias or favourtism affecting the impartialevaluation of candidate in viva-voce – Thus, respondents directedto award 20 grace marks in Civil Law-I paper and 10 grace marksin Civil Law-II paper to all the candidates – Issuance of directionto prepare fresh results of the Main (Written) Examination of CivilJudge and complete the selection process within the stipulatedperiod – Constitution of India – Art. 32 - Judicial service.

Partly allowing the Writ Petitions, the Court

HELD: 1.1 In the instant case, Justice Sikri criticallyexamined the selection process as well as the evaluation method

CDEFG

Aand it is explicit from his report that the procedure of evaluationwas ‘uniform’. Evaluation done by multiple evaluators i.e. oneEvaluator examining and marking one question in all the mark–sheets, ensures uniformity and prevents chance grading. Everycandidate’s answers are marked on same parameters by the sameexaminer. There can possibly be no other better method to ensureBuniformity in evaluation. The petitioners have stated that as perthe information received via RTI no model ‘answer key’ waspresent. It gives more credance to the afore–stated method ofevaluation as no model ‘answer key’ ought to be devised for theMain Exam, the purpose whereof is not to just assess theCknowledge of candidates but also to evaluate their analyticalability. In the instant case, there was no Examiner Variability,therefore, Justice Sikri very aptly remarked that, “this was wellintended move to attain uniformity in evaluation”. This methodensures equal level play field for all candidates. The only setbackwas lack of holistic view and lack of realistic expectations in theDexaminer’s mind, for which there are adequate remedies.[Para 14][60-G-H; 61-A-C]

1.2 The marking criteria and evaluation method was strictbut it was so for everyone. This was may be for the reason thatone Evaluator checked one answer in each script and in thisEmanner the entire lot of scripts were marked. The Evaluatorsfailed to keep pragmatic view that source of recruitment waslikely to be the same in fresh attempt also and that candidateshad only 8.5 minutes to answer each question and time constraintdid not allow them to give their best of performance. Even thoseFcandidates who covered all aspects briefly were not awardedproper marks. It was not case where some candidates weresubjected to strict marking and others had an advantage of lenientmarking, so as to draw an inference that the evaluation methodwas discriminatory or arbitrary. [Para 15][61-D-E]G1.3 It has been found as matter of fact that the officials ofthe High Court ensured adequate security measures such askeeping the answer scripts in iron boxes under round–the–clocksecurity and CCTV cameras. Hence, it is just and fair to hold thatno discriminatory or malafide practice was undertaken while

conducting the exam or its following processes. [Para 16][61-F-G]

2.1 Considering that the marking was strict but notdiscriminatory, the remedy of moderation of marks, in order toremove the variation caused by multiple examiners and dearthof time, is the only effective, equitable and efficasious solution.The petitioners have stated and rightly so that as per the RTI,there are no rules governing grace marks. They have suggestedthat any appropriate scientific technique like scaling, ormoderation can be adopted in this case, as is done by Union PublicService Commission (UPSC) for administrative appointments andUP Public Service Commission (UPPSC) for judicial recruitments.[Para 17][61-H; 62-A-B]

2.2 This Court in Sanjay Singh’s case considered thesuitability of scaling method in depth but declined to approve thesame for Judicial Examinations. It considered the viability ofscaling and moderation for Judicial Services Examinations andheld that use of Scaling is appropriate only when there isdifferentiation amongst subjects opted by candidates. This doesnot apply in the cases where subjects are uniform. Further,moderation is more viable technique so as to exclude the effectof examiner variability. In the instant case, there was no examinervariability but marking was strict, thus, the option of moderationdeserves to be considered and applied. [Para 18, 19][62-B; 63-D, F]

Sanjay Singh & Anr vs U.P. Public Service Commission(2007) 3 SCC 720 : [2007] 1 SCR 235 – referred to.

2.3 Moderation can be by the addition of marks (in case ofstrict marking) and/or deduction of marks (in case of lenientmarking). In the instant case that the strict marking has causedsevere prejudice to the candidates and only 0.702% of them couldqualify as against 107 vacancies. The candidates have beensuffering for last five years. It is, therefore, inevitable to docomplete justice and invoke the powers under Article 142 of theConstitution and consequently award grace marks to thecandidates so that more candidates, who are otherwise no less

ABC

Ameritorious, get an opportunity to appear for the viva–voce. Thequestion is how many grace marks should be awarded and whatshould be the criteria followed. [Para 20, 21][63-G; 64-D-E]

Taniya Malik vs. The Registrar General of Delhi HighCourt (2018) 14 SCC 129 : [2018] 10 SCR 348 –Bdistinguished.

2.4 Justice Sikri in his concise but scholarly authored reporthas suggested three alternatives for awarding of grace marks;First Alternative is awarding 20 marks in Civil Law–I; SecondAlternative is awarding 20 marks in Civil Law–I and 10 marks inCCivil Law–II; and Third Alternative is awarding 35 marks inaggregate. After going through the report of Justice Sikri, in thisregards, it is deemed appropriate to adopt Alternative II of theReport, since the marking in Civil Law–I and Civil Law–II bothwas strict. Marking of Civil Law–II was only marginally strict.Equity can thus be well balanced by awarding 10 marks to everyDcandidate in Civil Law–II paper and 20 marks in Civil Law–I.The prayer of the petitioners for addition of 50 grace marks isnot found feasible, for the moderation should also look reasonable.The petitioners have failed to assign any well founded reason forseeking moderation of 50 grace marks, only on the apprehensionEthat even the candidates who secured good marks in writtenexaminations were given very low marks in viva–voce and theCommittee has been awarding meagre 8 to 18 marks, and hencethey too will not be able to meet the eligibility criteria of minimum50% marks. It is not compulsory for the High Court to fill allvacant posts, even if suitable candidates are not available. [ParaF22][64-F-H; 65-A]2.5 The need of viva–voce is an integral part of selectionprocess for certain posts. The viva–voce and Written Examination(Main Exam), thus, both have their own importance in selectionprocess and it is for the interviewing panel to decide how manyGmarks be awarded to candidate keeping in view his/herperformance in interview. Secondly, the composition of SelectionCommittee is the sole prerogative of Chief Justice of the HighCourt and this Court need not venture into the issue whichpertains to exercise of administrative power(s) of the ChiefHJustice. [Para 23][65-C, E-F]

3. The alternative prayer of the petitioners for re–evaluationby an Independent Expert Committee is not worth acceptance.Firstly, for the reason that these 107 posts are already lying vacantfor considerable long period and the re–evaluation would furtherdelay it. Secondly, Justice Sikri has thoroughly examined the factsituation before recommending the award of grace marks. Thirdly,there is no provision for re–evaluation in the Recruitment Rulesand any such direction would run counter to the mandate of thisCourt in H.P. Public Service v. Mukesh Thakur laying down that inthe absence of any provision under the statute or statutory rules/regulations, the Courts should not generally direct re–evaluation.[Para 24][65-G-H; 66-A]

H.P. Public Service Commission v. Mukesh Thakur

(2010) 6 SCC 759 : [2010] 7 SCR 189 – relied on.

4. As regards the petitioners’ plea that marks of the MainExam should be disclosed before conducting viva–voce, such apractice may not insulate the desired transparency, rather willinvite criticism of likelihood of bias or favourtism. The broadprinciples to be laid down in this regard must be viewed keepingin view the selections for various categories of posts by differentSelecting Authorities, for such self–evolved criteria cannot berestrocted to Judicial Services only. If the Members of theInterviewing Boards are already aware of the marks of candidatesecured in the Written Examination, they can individually orjointly tilt the final result in favour or against such candidate. Thesuggested recourse, thus, is likely to form bias affecting theimpartial evaluation of candidate in viva–voce. As the writtenexamination assesses knowledge and intellectual abilities of acandidate, the interview is aimed at assessing their overallintellectual and personal qualities which are imperative to hold ajudicial post. Any measure which fosters bias in the minds of theinterviewers, therefore, must be done away with. [Para 27][66-G; 67-A-C]

Ashok Kumar Yadav and Others v. State of Haryana(1985) 4 SCC 417 : [1985] 1 Suppl. SCR 657 – reliedon.

[2019] 15 S.C.R.

A5. The respondents are directed to award 20 grace marksin Civil Law–I paper and 10 grace marks in Civil Law–II paperto all the candidates of 2019 Examination and prepare fresh resultsof the Main (Written) Examination of Civil Judge (Junior Division)within two weeks and complete the selection process within fourweeks thereafter. The entire selection process shall be completedBin all respects before 15[th] February, 2020. The left out vacantposts along with vacancies which have occurred meanwhile andthose anticipated within next six months, be advertised as earlyas possible and be filled in accordance with the timeline prescribedby this Court in Malik Mazhar Sultan case. [Para 28][67-D-F]

CMalik Mazhar Sultan vs. U.P. Public Service Commission(2008) 17 SCC 703 – relied on.

CPIL v. Registrar General of High Court of Delhi(2017) 11 SCC 456; Prashant Ramesh Chakrawar v.UPSC & Ors (2013) 12 SCC 489; Sujasha Mukherji v.DHigh Court of Calcutta (2015) 11 SCC 395 : [2015] 2SCR 480; Lila Dhar v. State of Rajasthan (1981) 4 SCC159 : [1982] 1 SCR 320; Pramod Kumar Srivastava v.Bihar Public Service Commission (2004) 6 SCC 714 :[2004] 3 Suppl. SCR 372; Centre for Public InterestELitigation vs Registrar–General High Court of Delhi(2017) 11 SCC 456 – referred to.

Case Law Reference

(2017) 11 SCC 456referred toPara 10.1[2007] 1 SCR 235referred toPara 13F(2013) 12 SCC 489referred toPara 13[2015] 2 SCR 480referred toPara 13[2018] 10 SCR 348distinguishedPara 21G[1982] 1 SCR 320referred toPara 23[2010] 7 SCR 189relied onPara 24[2004] 3 Suppl. SCR 372referred toPara 25(2017) 11 SCC 456referred toPara 26

[1985] 1 Suppl. SCR 657relied onPara 27(2008) 17 SCC 703relied onPara 28

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.565 of 2019.

[Under Article 32 of The Constitution of India]

With

W.P. (C) No. 617/2019 and 651/2019

Nidesh Gupta, Gurminder Singh, Sr. Advs., Prashant Bhushan,Hemanth Pothula, Miss Tulika Prakash, Ravi Panwar, Ashok Mathur,Ms. Neidhi Gupta, D. S. Chauhan, Ms. Ruchi Singh, Prashant Kumar,Surender Kumar Gupta and Ms. Priya Mishra, Advs. for the appearingparties.

The following Judgment of the Court was delivered :

JUDGMENT

1. These Writ Petitions under Article 32 of the Constitution havebeen filed at the instance of more than 90 candidates challenging theentire selection process and evaluation method adopted in the Main(Written) Examination of Civil Judge (Junior Division) [herein referredto as “Main Exam”] in the Haryana Civil Service (Judicial Branch)Examination – 2017 and seeking to quash the result declared on 11.4.2019along with the directions to get all the papers of the Main Exam of thepetitioners to be re-evaluated by an Independent Expert Committee,besides the constitution of an Independent Judicial Service Commissionfor conducting examinations for selection of Lower Judicial Officers.

Factual Background

2. Pursuant to the Notification-cum-Advertisement No. 6 of 2016published on 20.03.2017 [herein after referred to as the “OriginalNotification”] for recruitment to 109 posts of Civil Judge (Junior Division)in Haryana Civil Service (Judicial Branch) – 2017, PreliminaryExamination was conducted on 16.07.2017. However, on account ofquestion paper-leak, the High Court of Punjab & Haryana scrapped thesaid examination on 13.09.2017. Thereafter, 107 posts were re-notifiedon 27.08.2018, out of which 75 were meant for General Category andthe remaining 32 were earmarked for Scheduled Castes, Backward

AClasses (a), Backward Classes (b), Economically Backward Persons inGeneral Category, Ex-Service Men and Physically Handicapped Personsof Haryana State.

3. The examination was conducted in accordance with provisionsof Punjab Civil Services (Judicial Branch) Rules, 1951 as applicable toBthe State of Haryana and as amended from time to time including videnotification no. GSR1/Const./Art.234 & 309/2017 dated 09.01.2017. Thisexamination comprised of three stages –

(I) Preliminary Examination

(II) Main ExaminationC

(III) Viva Voce

4. Marks obtained in the Preliminary Examination were not to becounted towards final results. The purpose was solely to shortlist thecandidates for the Main Exam. Candidates equal to 10 times the numberof vacancies advertised, were shortlisted in order of their merit in theDrespective categories to enable them to sit in the Main Exam. If two ormore candidates at the last number got equal marks, then all of themwere considered eligible to sit for the Main Exam, warranting thecorresponding increase in the stipulated ratio.5. The Main Exam consisted of five papers – Civil Law – I, CivilELaw – II, Criminal Law, English and Hindi. The first four papers werefor 200 marks and Hindi was for 100 marks. In order to qualify for viva-voce examination, candidate is required to secure minimum of 33%marks in each of the written exam and an aggregate of minimum 50%marks in all five papers [45% for reserved category]. It is pertinent tonote that viva-voce is also part of the Main Exam and treated as theFsixth paper of 200 marks. No minimum marks are prescribed for viva-voce as per the Rules. The candidates equivalent to three times of theadvertised posts, who qualify in the written Exam are called strictly inorder of merit to appear for the viva-voce. Marks obtained in the fivepapers are consolidated with the marks obtained in Viva Voce andGaccordingly final merit list is prepared.

6. Preliminary Examination pursuant to the re-notified vacancieswas held on 22.12.2018 and its result was declared on 21.01.2019. MainExam was held from 15.03.2019 to 17.03.2019. Results of the MainExam were declared on 11.04.2019 wherein only 9 candidates (6 ofHGeneral Category and 3 of Reserved Categories) were declared qualified

and found fit for the Viva Voce. Complete details of the number ofcandidates who appeared/qualified in each stage of the selection processare as follows:–

7. Aggrieved by their exclusion from amongst the candidatesqualified for viva voce and contending that the entire selection processis unjust, unfair, arbitrary and violative of Article 14 of the Constitution,the Petitioners have approached this Court and sought indulgence inlight of the followings:

a. As per the result declared, only 0.702% candidates managedto pass the Main Exam and the rest 99.298% failed. Theexplanation given for this was that no other candidate couldsecure minimum of 33% in each subject and an aggregate ofD50% in all five (45% for reserved category).

b. Information obtained through RTI discloses that there was nomarking criteria or model answer key for evaluation of answerscripts of the Main Exam. Performance of the candidates solelydepended on the discretion of the examiner(s). Further, noprinciples governing grace marks were available.

c. The High Court has provided an ineffective and infructuousremedy of paid re-checking without the disclosure of marks ofcandidates who had not qualified.

8. This Court on 29.04.2019 directed the Registrar General of theHigh Court to be present in person along with answer scripts of all thecandidates who appeared in the Main Exam. On 03.05.2019, havingconsidered the grievances of the Petitioners, Hon’ble Mr. A.K. Sikri, J.,a former Supreme Court Judge was requested to look into some of theanswer scripts of the Main Exam to make an assessment whether theevaluation undertaken should be accepted by the Court. On 31.07.2019,Justice Sikri, after deep insight and thorough evaluation of the answerscripts gave his report along with valuable suggestions of paramountimportance.

Report by Hon’ble Justice (Retd.) A. K. Sikri dated31.07.2019

A9. Justice Sikri has evaluated the selection process as well asthe evaluation method used in the Main Exam and opined under differentheads as follows:

9.1 Selection Process – It is observed that the selection processis prima facie faultless. The Co-ordinators of the exam wereBhighly qualified persons i.e. Vice Chancellors of National LawSchools or very senior professors, who provided the questionbank to the Recruitment Committee. On this basis, theRecruitment Committee formulated the question paper(s) forthe Main Exam. Examination Centre-in-charge handed overanswer scripts of 1195 candidates in sealed iron boxes to theCRegistrar-Recruitment. These iron boxes were kept understrict surveillance round the clock. Also, roll numbers wereconcealed on the answer sheets before evaluation. Manyother adequate security measures were also ensured.9.2 Evaluation Method – To make an assessment on theDevaluation method adopted in the Main Exam, Justice Sikrirandomly selected scripts of 5 candidates who had qualifiedthe exam and of 5 petitioners. These answer scripts had beenprovided to him in Delhi under strict security. Further, to ensuretransparency, he checked answer sheets of some otherEcandidates who had not qualified the Main Exam (other thanpetitioners) for which he visited the High Court of Punjab &Haryana on two occasions- 24.05.2019 and 11.06.2019.

9.3 The purpose to evaluate all the scripts was to compare themarks given to the qualified candidates with those who didnot qualify by going through the quality of their answers. HeFalso had look at the list of marks obtained by all thecandidates.

9.4 Observations :

Justice Sikri in his report has observed that the evaluationGdone for Criminal Law, English and Hindi papers wasappropriate. He identified the main problem in Civil Law-Ipaper and found that there were 18 questions in total in thispaper and all of them were compulsory. Total time for finishingthe paper was 3 hours i.e. 180 minutes. He made anassessment that if 27 minutes are taken out for reading and

understanding the questions (1.5 minute per question), thenthe candidate was left with 8.5 minutes to answer eachquestion. The questions were descriptive in nature. It ispertinent to note that the three law papers were evaluated byfifteen Evaluators by allotting one question to one Evaluator.Thus, one question was evaluated by one Evaluator only inall answer scripts and in this manner each answer script wasexamined by many Evaluators. He, thus, came to the followingconclusions:

•Marking of Civil Law- I was strict. Evaluators seemed toexpect long answers for each question covering all aspectsin detail, without recognizing that candidates barely had anytime. Even the candidates who covered all aspects in briefwere not awarded good marks.

•Highest marks in Civil Law- I were 95 out of 200 i.e. 47.5%.Even, this candidate deserved more marks.

•The method of getting answer scripts evaluated by manyEvaluators was intended to attain uniformity. However, majorrepercussion was that this left the Evaluators with noopportunity to see overall performance of the candidates andtake holistic view. Evaluators would have had realisticexpectation in mind if they checked the complete answerscripts as opposed to checking only one answer.

•Paper was not difficult but too lengthy. Most of the questionswere descriptive, some replica of bare provisions. Examinerexpected long answers, but the questions were too many andthe marking was extremely strict.

•For Civil Law –II, – attributes pointed in Civil Law – I werenot present. Though, it was noted that suitable marks werenot awarded even when answers were perfect. There wasmarginally strict marking.

9.5 Suggestions

Justice Sikri has unambiguously opined that the situation canbe remedied by moderating marks so that more students canqualify the Main Exam for appearing in Viva Voce. total of311 candidates secured more than 33% marks in Civil Law-I

54SUPREME COURT REPORTS

APaper but they could not secure aggregate 50% marks whichimpacted their final result. Accordingly, he has after duedeliberations suggested the following three alternatives: –

•Alternative I – 20 Grace Marks i.e. 10% be given in CivilLaw –I. Using this, 28 more candidates (15 General + 13BReserved) will qualify for Viva Voce making the total numberof qualified candidates to 37.

•Alternative II – 20 Grace Marks i.e. 10% be given to allcandidates in Civil Law-I paper and 10 Grace Marks i.e. 5%be added in marks secured by all candidates in Civil Law-IICpaper. Cumulatively, 30 marks in total will increase. Using this,60 (33 General + 27 Reserved) candidates will get through toViva Voce taking the tally of qualified candidates to 69.

•Alternative III – Moderation be done by giving 35 marks toall candidates. This will add 42 General Category candidatesDand 23 Reserved Category candidates to the existing numberof 9, thereby making total of 74.

In the concluding remarks, Justice Sikri has recommended useof Alternative I. But keeping in mind availability of large scalevacancies, he has also suggested other two alternatives byEvirtue of which more candidates can qualify for viva-voce.

Contentions of Petitioners:

10. Learned Counsel for the Petitioners, Mr. Prashant Bhushanat the outset has pointed out an inadvertent clerical error in the report ofSikri, J. regarding the number of vacancies allocated for general andFreserved categories, as per the re-notified advertisement. On merits, hissubmissions may be summarized as follows:-

10.1 First Alternative sought by the petitioners is re-evaluationof both the Civil Law-I and Civil Law-II papers by an IndependentAuthority as there was strict marking in these papers. For this,Gthe petitioners lay emphasis on the standards laid down in CPILvs Registrar General of High Court of Delhi[1].

10.2 The Second Alternative submission is that 50 grace marksmay be awarded to all the candidates, so the number of candidates

qualified for Viva Voce would increase to 150-160 (nearly 1.5times the number of vacancies available). It is highlighted that noappointment had been made in Haryana Judicial Service since2014.

10.3 Shortlisting of sufficient candidates for appearing in viva-voce is desperately needed so that no seat is left vacant keepingin mind that many of the candidates have already been selectedfor various other State Judicial Services. 31 petitioners havealready been appointed in different Judicial Services and manymore would have been appointed from the 1195 candidates whoappeared in the Main Exam. It can be safely inferred that someof the candidates are likely to drop out of Haryana Judicial ServiceInterview process or appointment.

10.4 The petitioners oppose the idea of conducting freshexamination because it will only add to the hardships of thecandidates, more so when they have already appeared twice inthe said process.

10.5 The petitioners have highlighted the criteria of obtaining inaggregate minimum of 50% marks in six papers (including fivepapers of Main Exam and sixth- viva-voce) and expressed theirapprehension of scoring low marks in viva-voce due to whichthey would not be able to secure the minimum aggregate of 50%marks to meet the eligibility criteria. The reason of apprehensionis that the same Recruitment Committee constituted by the Punjaband Haryana High Court has awarded only 8 to 18 marks to alarge number of candidates even though they have secured goodsmarks in the written examinations. This Court, therefore, shouldemploy moderation technique by which candidates who deservethe seat can get it.

10.6 Seventy-four candidates who will become successful toappear for Viva Voce as per Alternative III suggested by Sikri, J.would only touch the bare minimum marks i.e. 450 marks out of900 and if they fail to secure 50% marks in Viva Voce then theentire exercise would become futile.

10.7 The petitioners, thus, suggest moderation and scaling scientifictechniques to remove variation caused by factors like multipleexaminers, multiple optional subjects with varying difficulty levels

Aor different difficulty levels of the mandatory subjects for allcandidates. These methods, according to them, are used by theUPSC for administrative appointments and UPPSC for judicialrecruitments.

10.8 Petitioners and other candidates have immensely suffered inBthe last 5 years in anticipation of the exam dates and fair selectionand appointments. They could not engage themselves in any othercareer options due to the constant uncertainty.

10.9 The names and subject marks obtained by each candidateshould be disclosed in consolidated list after the Main Exam andCbefore the Viva Voce. Similar procedure is followed in Delhi,Rajasthan etc. to ensure transparency.

10.10 The timelines given in Malik Mazhar Sultan vs. U.P. PublicService Commission[2]should be strictly adhered to. Respondentsshould conduct the next examination cycle in time bound manner.

11. S/Shri Nidesh Gupta and Gurminder Singh, Senior Advocatesrepresenting the Punjab and Haryana High Court, on the other hand,strenuously opposed the petitioners’ claim and urged that since JusticeSikri has not found any fault or illegality in the selection process whichhas been conducted in most fair and impartial manner under strictEadminisrative vigil, there is no necessity for this Court to interfere withthe selection process while exercising the power of judicial review. Theyurged that the standards of the examination be not diluted by acceptingthe suggestions given by Justice Sikri in his report and the appropriaterecourse would be to re-advertise the vacant posts and make selectionafresh.F

Issues for consideration

12. On consideration of the rival submissions and on appreciationof the report submitted by Justice Sikri, it appears that the followingquestions arise for our consideration:

G(i) Whether selection process and evaluation method is unjust,arbitrary and in violation of Article 14 of the Constitution?

(ii) Whether moderation of marks (grace marks) is needed in thefacts and circumstances of the present case?

(iii) Whether re-valuation of Civil Law-I and Civil Law-II papersis required by an Independent Expert Committee?

(iv) Whether the marks obtained in the Main Exam be disclosedbefore the viva-voce is conducted?

Analysis of the Issues:

Re: Issue 1

13. The Petitioners contended that the evaluation has been donewithout any marking criteria, it lacks uniformity and is in contraventionof the view taken by this Court in the following decisions –

• Sanjay Singh & Anr vs U.P. Public Service Commission[3]

• Prashant Ramesh Chakrawar vs UPSC & Ors[4]

• Sujasha Mukherji vs High Court of Calcutta[5]

• CPIL vs Registrar General of the High Court of Delhi[6]

13.1 In Sanjay Singh (supra), this Court analytically went intoinner depth of the scheme of Examination and laid down guidelinesregarding moderation of marks in case of judicial servicesexamination. It was, thus, held:

“23. When large number of candidates appear for anexamination, it is necessary to have uniformity andconsistency in valuation of the answer-scripts. Where thenumber of candidates taking the examination are limitedand only one examiner (preferably the paper-setter himself)evaluates the answer-scripts, it is to be assumed that therewill be uniformity in the valuation. But where largenumber of candidates take the examination, it will not bepossible to get all the answer-scripts evaluated by the sameexaminer. It, therefore, becomes necessary to distribute theanswer-scripts among several examiners for valuation withthe paper-setter (or other senior person) acting as the HeadExaminer. When more than one examiner evaluate theanswer-scripts relating to subject, the subjectivity of the

3 (2007) 3 SCC 720

4 (2013) 12 SCC 489

5 (2015) 11 SCC 395

6 (2017) 11 SCC 456

respective examiner will creep into the marks awarded byhim to the answer-scripts allotted to him for valuation. Eachexaminer will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experiencedexaminers receive equal batches of answer scripts, thereis difference in average marks and the range of marksawarded, thereby affecting the merit of individualcandidates. This apart, there is ‘Hawk-Dove’ effect. Someexaminers are liberal in valuation and tend to award moremarks. Some examiners are strict and tend to give lessmarks. Some may be moderate and balanced in awardingmarks. Even among those who are liberal or those whoare strict, there may be variance in the degree of strictnessor liberality. This means that if the same answer-script isgiven to different examiners, there is all likelihood ofdifferent marks being assigned. If very well writtenanswer-script goes to strict examiner and mediocreanswer-script goes to liberal examiner, the mediocreanswer-script may be awarded more marks than theexcellent answer-script. In other words, there is ‘reducedvaluation’ by strict examiner and ‘enhanced valuation’by liberal examiner. This is known as ‘examinervariability’ or ‘Hawk-Dove effect’. Therefore, there is aneed to evolve procedure to ensure uniformity inter sethe Examiners so that the effect of ‘examiner subjectivity’or ‘examiner variability’ is minimised. The procedureadopted to reduce examiner subjectivity or variability isknown as moderation. The classic method of moderationis as follows:

(i) The paper-setter of the subject normally acts as the HeadExaminer for the subject. He is selected from amongst senioracademicians/scholars/senior civil servants/Judges. Wherethe case of large number of candidates, more than oneexaminer is appointed and each of them is allotted around300 answer-scripts for valuation.

(ii) To achieve uniformity in valuation, where more thanone examiner is involved, meeting of the Head Examinerwith all the examiners is held soon after the examination.

They discuss thoroughly the question paper, the possibleanswers and the weightage to be given to various aspectsof the answers. They also carry out sample valuation inthe light of their discussions. The sample valuation ofscripts by each of them is reviewed by the Head Examinerand variations in assigning marks are further discussed.After such discussions, consensus is arrived at in regardto the norms of valuation to be adopted. On that basis, theexaminers are required to complete the valuation of answerscripts. But this by itself does not bring about uniformityof assessment inter se the examiners. In spite of the normsagreed, many examiners tend to deviate from the expectedor agreed norms, as their caution is overtaken by theirpropensity for strictness or liberality or eroticism orcarelessness during the course of valuation. Therefore,certain further corrective steps become necessary.

(iii) After the valuation is completed by the examiners, theHead Examiner conducts random sample survey of thecorrected answer scripts to verify whether the normsevolved in the meetings of examiner have actually beenfollowed by the examiners. The process of random samplingusually consists of scrutiny of some top-level answer scriptsand some answer books selected at random from the batchesof answer scripts valued by each examiner. The top-levelanswer books of each examiner are revalued by the HeadExaminer who carries out such corrections or alterationsin the award of marks as he, in his judgment, considersbest, to achieve uniformity. (For this purpose, if necessarycertain statistics like distribution of candidates in variousmarks ranges, the average percentage of marks, the highestand lowest award of marks etc. may also be prepared inrespect of the valuation of each examiner.)(iv) After ascertaining or assessing the standards adoptedby each examiner, the Head Examiner may confirm theaward of marks without any change if the examiner hasfollowed the agreed norms, or suggest upward ordownward moderation, the quantum of moderation varyingaccording to the degree of liberality or strictness in

ABC

marking. In regard to the top level answer books revaluedby the Head Examiner, his award of marks is accepted asfinal. As regards the other answer books below the toplevel, to achieve maximum measure of uniformity inter sethe examiners, the awards are moderated as per therecommendations made by the Head Examiner.

(v) If in the opinion of the Head Examiner there has beenerratic or careless marking by any examiner, for which itis not feasible to have any standard moderation, the answerscripts valued by such examiner are revalued either by theHead Examiner or any other Examiner who is found tohave followed the agreed norms.

(vi) Where the number of candidates is very large and theexaminers are numerous, it may be difficult for one HeadExaminer to assess the work of all the Examiners. In sucha situation, one more level of Examiners is introduced. Forevery ten or twenty examiners, there will be HeadExaminer who checks the random samples as above. Thework of the Head Examiners, in turn, is checked by ChiefExaminer to ensure proper results.

The above procedure of ‘moderation’ would bring inconsiderable uniformity and consistency.

It should be noted that absolute uniformity or consistencyin valuation is impossible to achieve where there are severalexaminers and the effort is only to achieve maximum”uniformity.

[Emphasis applied]

13.2 The guidelines laid down in Sanjay Singh (supra) have beenfollowed in the other three cases cited on behalf of the petitionersviz. Prashant Ramesh Chakrawar (supra), Sujasha Mukherji(supra) and CPIL (supra).

14. In the instant case, Justice Sikri critically examined the selectionprocess as well as the evaluation method and it is explicit from his reportthat the procedure of evaluation was ‘uniform’. We are of the view thatevaluation done by multiple evaluators i.e. one Evaluator examining andmarking one question in all the mark-sheets, ensures uniformity and

prevents chance grading. Every candidate’s answers are marked onsame parameters by the same examiner. There can possibly be no otherbetter method to ensure uniformity in evaluation. The petitioners havestated that as per the information received via RTI no model ‘answerkey’ was present. It gives more credance to the afore-stated method ofevaluation as no model ‘answer key’ ought to be devised for the MainExam, the purpose whereof is not to just assess the knowledge ofcandidates but also to evaluate their analytical ability. In the presentcase, there was no Examiner Variability, therefore, Justice Sikri has veryaptly remarked that, “this was well intended move to attain uniformityin evaluation”. This method ensures equal level play field for allcandidates. The only setback was lack of holistic view and lack of realisticexpectations in the examiner’s mind, for which there are adequateremedies as discussed in the later part of this order.15. The marking criteria and evaluation method was strict but itwas so for everyone. This was may be for the reason that one Evaluatorchecked one answer in each script and in this manner the entire lot ofscripts were marked. The Evaluators failed to keep pragmatic viewthat source of recruitment was likely to be the same in fresh attemptalso and that candidates had only 8.5 minutes to answer each questionand time constraint did not allow them to give their best of performance.Even those candidates who covered all aspects briefly were not awardedproper marks. Unlike the hypothetical illustration given in Sanjay Singh’scase (supra), it was not case where some candidates were subjectedto strict marking and others had an advantage of lenient marking, so asto draw an inference that the evaluation method was discriminatory orarbitrary.

16. It has been found as matter of fact that the officials andofficers of the High Court ensured adequate security measures such askeeping the answer scripts in iron boxes under round-the-clock securityand CCTV cameras. Hence, it is just and fair to hold that nodiscriminatory or malafide practice was undertaken while conductingthe exam or its following processes.

Re: Issue II

17. Considering that the marking was strict but not discriminatory,the remedy of moderation of marks, in order to remove the variationcaused by multiple examiners and dearth of time, is the only effective,equitable and efficasious solution. The petitioners have stated and rightly

Aso that as per the RTI, there are no rules governing grace marks. Theyhave suggested that any appropriate scientific technique like scaling, ormoderation can be adopted in this case, as is done by Union PublicService Commission (UPSC) for administrative appointments and UPPublic Service Commission (UPPSC) for judicial recruitments.

B18. This Court in Sanjay Singh (supra) considered the suitabilityof scaling method in depth but declined to approve the same for JudicialExaminations observing as follows:

“24. In the Judicial Service Examination, the candidates wererequired to take the examination in respect of all the fiveCsubjects and the candidates did not have any option in regardto the subjects. In such situation, moderation appears to bean ideal solution.But there are examinations which have acompetitive situation where candidates have the option ofselecting one or few among variety of heterogenous subjectsand the number of students taking different options also varyDand it becomes necessary to prepare common merit list inrespect of such candidates. Let us assume that somecandidates take Mathematics as an optional subject and sometake English as the optional subject. It is well recognised thatmarks of 70 out of 100 in Mathematics do not mean the sameEthing as 70 out of 100 in English. In English 70 out of 100may indicate an outstanding student whereas in Mathematics,70 out of 100 may merely indicate an average student. Someoptional subjects may be very easy, when compared to others,resulting in wide disparity in the marks secured by equallycapable students. In such situation, candidates who haveFopted for the easier subjects may steal an advantage overthose who opted for difficult subjects. There is anotherpossibility. The paper-setters in regard to some optionalsubjects may set questions which are comparatively easier toanswer when compared to some paper-setters in other subjectsGwho set tougher questions which are difficult to answer. Thismay happen when for example, in Civil Service Examination,where Physics and Chemistry are optional papers, Examiner‘A’ sets paper in Physics appropriate to degree level andExaminer ‘B’ sets paper in Chemistry appropriate formatriculate level. In view of these peculiarities, there is need

to bring the assessment or valuation to common scale sothat the inter se merit of candidates who have opted fordifferent subjects, can be ascertained. The moderationprocedurereferred to in the earlier para will solve only theproblem of examiner variability, where the examiners are-many, but valuation of answerscripts is in respect of singlesubject. Moderation is no answer where the problem is to findinter se merit across several subjects, that is, where candidatestake examination in different subjects. To solve the problemof inter se merit across different subjects, statistical expertshave evolved method known as scaling, that is creation ofscaled score.”

[Emphasis added]

19. This Court thus considered the viability of scaling andmoderation for Judicial Services Examinations and held that use of Scalingis appropriate only when there is differentiation amongst subjects optedby candidates. This does not apply in the cases where subjects areuniform. Further, moderation is more viable technique so as to excludethe effect of examiner variability. In Sanjay Singh case (supra), thisCourt observed that, “there is “reduced valuation” by strictexaminer and “enhanced valuation” by liberal examiner. This isknown as “examiner variability” or “hawk-dove effect” …[P]rocedure of moderation would bring in considerable uniformityand consistency. It should be noted that absolute uniformity orconsistency in valuation is impossible to achieve where there areseveral examiners and the effort is only to achieve maximumuniformity.” (para 23) As already discussed, there was no examinervariability in present case but marking was strict which is why we are ofthe view that the option of moderation deserves to be considered andapplied.

20. We may also notice that moderation can be by the addition ofmarks (in case of strict marking) and/or deduction of marks (in case oflenient marking). In Taniya Malik vs. The Registrar General of DelhiHigh Court[7], 100 posts were advertised and only 64 candidates couldqualify the Main Exam for appearing in the Viva Voce. While consideringthe challenge to examination process, this Court held that moderationcannot be applied for the reason that:

A“This Court in Sanjay Singh (supra) has laid down moderationto be appropriate where there are multiple examiners of the samesubject. It has also been observed that where number ofcandidates are limited and only one examiner will evaluate, it is tobe assumed that there will be uniformity in valuation. That is onlywhere several examiners evaluate the same subject. There isBdifference in average marks and range of marks awarded. Thereis ‘hawk-dove’ effect. Some examiners are liberal and theyaward more marks; some examiners are strict and they give fewermarks, the same may be moderated. There may be variance indegree of strictness and liberality. It is in order to remove theCsubjectivity or variability, that the provision of moderation isadopted. It is not the situation in the instant case, hence, the decisionin Sanjay Singh (supra) rather than buttressing negates the pleaof moderation urged on behalf of the Petitioners.”

21. Taniya Malik’s case (supra) is distinguishable as it has beenDfound as matter of fact in the instant case that the strict marking hascaused severe prejudice to the candidates and only 0.702% of themcould qualify as against 107 vacancies. The candidates have been sufferingfor last five years. It is, therefore, inevitable to do complete justice andinvoke the powers under Article 142 of the Constitution and consequentlyaward grace marks to the candidates so that more candidates, who areEotherwise no less meritorious, get an opportunity to appear for the viva-voce. The question is how many grace marks should be awarded andwhat should be the criteria followed.22. Justice Sikri in his concise but scholarly authored report hassuggested three alternatives for awarding of grace marks; FirstFAlternative is awarding 20 marks in Civil Law-I; Second Alternative isawarding 20 marks in Civil Law-I and 10 marks in Civil Law-II; andThird Alternative is awarding 35 marks in aggregate. The Petitioners, onthe other hand, have urged for awarding 50 grace marks keeping inview the fact that more candidates need to qualify for 107 vacancies.GAfter going through the report of Justice Sikri, in this regards, we deemit appropriate to adopt Alternative II of the Report, since the marking inCivil Law-I and Civil Law-II both was strict. Marking of Civil Law-IIwas only marginally strict. Equity can thus be well balanced by awarding10 marks to every candidate in Civil Law-II paper and 20 marks in CivilLaw-I. The prayer of the petitioners for addition of 50 grace marks isH

not found feasible, for the moderation should also look reasonable. Wemay hasten to add that it is not compulsory for the High Court to fill allvacant posts, even if suitable candidates are not available.

The petitioners have failed to assign any well founded reason forseeking moderation of 50 grace marks, only on the apprehension thateven the candidates who secured good marks in written examinationswere given very low marks in viva-voce and the Committee has beenawarding meagre 8 to 18 marks, and hence they too will not be able tomeet the eligibility criteria of minimum 50% marks.

23. Firstly, we may very briefly emphasise the need of viva-voceas an integral part of selection process for certain posts. This Court inLila Dhar v. State of Rajasthan[8], observed that

“6. … [T]he written examination assesses the man’s intellect andthe interview test the man himself and “the twain shall meet” fora proper selection.... [I]n the case of services to which recruitmenthas necessarily to be made from persons of mature personality,interview test may be the only way, subject to basic and essentialacademic and professional requirements being satisfied...”

The viva-voce and Written Examination (Main Exam), thus, bothhave their own importance in selection process and it is for theinterviewing panel to decide how many marks be awarded to candidatekeeping in view his/her performance in interview. Secondly, thecomposition of Selection Committee is the sole prerogative of ChiefJustice of the High Court and this Court need not venture into the issuewhich pertains to exercise of administrative power (s) of the ChiefJustice.

Re: Issue III

24. The alternative prayer of the petitioners for re-evaluation byan Independent Expert Committee is not worth acceptance. Firstly, forthe reason that these 107 posts are already lying vacant for considerablelong period and the re-evaluation would further delay it. Secondly, JusticeSikri has thoroughly examined the fact situation before recommendingthe award of grace marks. Thirdly, there is no provision for re-evaluationin the Recruitment Rules and any such direction would run counter to

8 (1981) 4 SCC 159

Athe mandate of this Court in H.P. Public Service Commission v. MukeshThakur[9], laying down that in the absence of any provision under thestatute or statutory rules/regulations, the Courts should not generallydirect re-evaluation.

25. The above-cited view has been reiterated by this Court inBPramod Kumar Srivastava v. Bihar Public Service Commission[10]observing as under:

“7. … Under the relevant rules of the Commission, there is noprovision wherein candidate may be entitled to ask for revaluationof his answer book. There is provision for scrutiny only whereinCthe answer books are seen for the purpose of checking whetherall the answers given by candidate have been examined andwhether there has been any mistake in the totalling of marks ofeach question and noting them correctly on the first cover page ofthe answer book. There is no dispute that after scrutiny no mistakewas found in the marks awarded to the appellant in the GeneralDScience paper. In the absence of any provision for revaluationof answer books in the relevant rules, no candidate in anexamination has got any right whatsoever to claim or ask forrevaluation of his marks.

[Emphasis added]”

26. The Petitioners have relied on the decision in Centre for PublicInterest Litigation vs Registrar-General High Court of Delhi[11] tosubstantiate their plea for re-valuation of answer scripts by an IndependentExpert Committee. However, in that case too it was held “if the suitablecandidates are not found, the employer is not obliged to fill up theFposts.” The directions for revaluation were given only as special case.

Re: Issue IV

27. As regards the petitioners’ plea that marks of the Main Examshould be disclosed before conducting viva-voce, we are of the consideredGopinion that such practice may not insulate the desired transparency,rather will invite criticism of likelihood of bias or favourtism. The broadprinciples to be laid down in this regard must be viewed keeping in viewthe selections for various categories of posts by different Selecting

9 (2010) 6 SCC 75910 (2004) 6 SCC 714H11 (2017) 11 SCC 456

Authorities, for such self-evolved criteria cannot be restrocted to JudicialServices only. If the Members of the Interviewing Boards are alreadyaware of the marks of candidate secured in the Written Examination,they can individually or jointly tilt the final result in favour or againstsuch candidate. The suggested recourse, thus, is likely to form biasaffecting the impartial evaluation of candidate in viva-voce. Theacceptance of the plea of the petitioners in this regard will also runcontrary to the authoritative pronouncement of this Court in Ashok KumarYadav and Others v. State of Haryana[12]. As the written examinationassesses knowledge and intellectual abilities of candidate, the interviewis aimed at assessing their overall intellectual and personal qualities whichare imperative to hold judicial post. Any measure which fosters bias inthe minds of the interviewers, therefore, must be done away with.

28. For the reasons stated above, we allow these Writ Petitions inpart with the following directions:-

(i)The Punjab and Haryana High Court through its RegistrarDGeneral is directed to award 20 grace marks in Civil Law-Ipaper and 10 grace marks in Civil Law-II paper to all thecandidates of 2019 Examination and prepare fresh results ofthe Main (Written) Examination of Civil Judge (Junior Division)within two weeks and complete the selection process withinfour weeks thereafter.E

(ii) The entire selection process shall be completed in all respectsbefore 15[th] February, 2020.

(iii) The left out vacant posts along with vacancies which haveoccurred meanwhile and those anticipated within next sixmonths, be advertised as early as possible and be filled inFaccordance with the timeline prescribed by this Court in MalikMazhar Sultan case (supra).

29. All pending applications, if any, are disposed of in terms of theaforesaid order.

Nidhi Jain

Writ Petitions partly allowed.

12 (1985) 4 SCC 417