himanshu agarwal and ors vs r p s c, ajmer on 27 october, 2009

Rajasthan High CourtHimanshu Agarwal And Ors vs R P S C, Ajmer on 27 October, 2009

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJAIPUR BENCH JAIPUR

ORDER

(1) D.B.CIVIL WRIT PETITION NO.3942/2007Sarita NoushadVersusR.P.S.C. and others

(2) D.B.CIVIL WRIT PETITION NO.3726/2007Himanshu Agrawal and othersVersusR.P.S.C. and others

(3) D.B.CIVIL WRIT PETITION NO.3814/2007Rajat KhatriVersusR.P.S.C. and others

(4) D.B.CIVIL WRIT PETITION NO.4109/2007Miss Toshita VermaVersusR.P.S.C. and others

(5) D.B.CIVIL WRIT PETITION NO.4115/2007Sunil VermaVersusR.P.S.C. and others

(6) D.B.CIVIL WRIT PETITION NO.4167/2007Balveer Singh Jat and othersVersusR.P.S.C. and others

(7) D.B.CIVIL WRIT PETITION NO.4227/2007Miss Divya SinghVersusR.P.S.C. and others

(8) D.B.CIVIL WRIT PETITION NO.4384/2007Kapil GuptaVersusR.P.S.C. and others

Himanshu Agarwal And Ors vs R P S C, Ajmer on 27 October, 2009

Indian Kanoon - http://indiankanoon.org/doc/64169702/ 1

(9) D.B.CIVIL WRIT PETITION NO.5288/2007Hari Singh MeenaVersusR.P.S.C. and others

(10) D.B.CIVIL WRIT PETITION NO.5457/2007Narendra MeenaVersusR.P.S.C. and others

(11) D.B.CIVIL WRIT PETITION NO.5618/2007Munesh Chand YadavVersusR.P.S.C. and others

(12) D.B.CIVIL WRIT PETITION NO.5695/2007Dhanpat MaliVersusR.P.S.C. and others

(13) D.B.CIVIL WRIT PETITION NO.6283/2007Suman PaliwalVersusR.P.S.C. and others

(14) D.B.CIVIL WRIT PETITION NO.6852/2007Ramchand GehlotVersusR.P.S.C. and others

(15) D.B.CIVIL WRIT PETITION NO.4350/2008PoojaVersusR.P.S.C. and others

(16) D.B.CIVIL WRIT PETITION NO.417/2009Mukesh Parnami and othersVersusR.P.S.C. and others

(17) D.B.CIVIL WRIT PETITION NO.418/2009Ms.Preeti SharmaVersusR.P.S.C. and others

(18) D.B.CIVIL WRIT PETITION NO.4343/2007Ravindra Kumar Sharma & anotherVersusR.P.S.C. and another

DATE OF ORDER --- October 27,2009

PRESENT



HONBLE MR.JUSTICE PREM SHANKER ASOPAHON'BLE MR.JUSTICE GUMAN SINGH

Mr.Asgar Ali Khan,Mr.R.K.Mathur, Mr.S.P.Sharma, Mr.Rajendra Soni,Mr.Vigyan Shah, Ms.Shikha Parnami on behalf of Mr.J.P.Goyal, Mr.Param Pawan, Mr.G.S.Fouzdar, Mr.Shishupal Singh, Mr.Kapil Gupta,Mr.Rajeev Surana and Mr.Bhaskar Dagar,for the petitioners Mr.S.N.Kumawat, for the RPSC Mr.Ashok Gaur, for the Raj.High Court

REPORTABLE BY THE COURT (Per P.S.Asopa J.)

(1) Since common questions of facts and law of applying the scaling formula while awarding themarks in written examination of Rajasthan Judicial Service, 2005 (RJS, 2005) are involved in thematter, all the cases were heard together and are being decided together by this common judgment.

(2) The facts of CWP No.3942/2007 Sarita Noushad V.Rajasthan Public Service Commission andothers are taken as the leading facts.

(3) On 19.11.2005, 85 posts of Civil Judge (Junior Division) and Judicial Magistrate under theRajasthan Judicial Service Rules, 1955 (hereinafter referred to as `the RJS Rules, 1955') for generalas well as reserved category were advertised which was referred as `RJS Examination,2005'. Thelast date for submission of the application forms was 9.1.2006 and the details of the categories of theposts, as per the requisition, are as under:

S.No.

GENERAL GEN WOMEN S.C. GEN WOMEN S.T. GEN WOMEN OBC GEN WOMEN TOTAL

- -09 0211 05 - -

08 0106 01 10 02

TOTAL 85

(4) Rajasthan Public Service Commission (RPSC) received 26,500 application forms including theapplication forms of the petitioners. Out of the 26,500 applicants, 12,576 applicants appeared in thewritten examination and after scaling, 244 candidates were called for interview and subsequently,78+9, in all 87, candidates have been selected and appointed.



(5) The interviews were held in the month of June, 2007 and the writ petition was filed by SaritaNoushad on 19.5.2007 challenging the adoption of scaling formula in R.J.S. and further seekingdirection to call her for interview on the basis of actual marks `176' awarded to her out of 300 markswhich were scaled down to `167', with the further relief of preparing fresh merit list. Interim reliefwas also sought for appearing in the interview.

(6) The Division Bench of this Court on 1.6.2007 was not inclined to grant any interim relief to thepetitioner while considering the fact that Sarita Noushad was one of the women candidates for twoseats reserved for women in Other Backward Class category and in all, six women OBC candidates,who had secured more marks than `168' have been called for interview and further, for the reasonsindicated in the interim order dated 31.5.2007 passed in another aforesaid CWP No.3726/2007Himanshu Agrawal and others V.R.P.S.C. and another whereby interim relief was denied.

(7) Against the aforesaid interim order dated 1.6.2007 passed in the writ petition filed by SaritaNoushad, SLP(C) No.10539/2007 was filed and the same was disposed of on 12.12.2008 along withanother SLP(C) No.10631/2007 and it was directed that any further appointment made would besubject to the result of the writ petitions. By the same order dated 12.12.2008, Writ Petition (C)No.183/2008 and 186/2008 were allowed to be withdrawn by the counsel to move to the HighCourt for which permission was granted by the Supreme court.

(8) It is stated in the writ petition that the scaling formula adopted by the RPSC is not applicable tothe RJS Rules, 1955 wherein the scheme of examination is specifically prescribed in Schedule-IIIappended thereto and referred in Rule 15 of the RJS Rules, 1955. According to Schedule-III, acandidate is required to obtain 35 percent marks in each of the law papers and 40 percent marks inthe aggregate, to be called for interview. Further, as per the said Schedule-III, there are two lawpapers Paper-I and Paper-II carrying 100 marks each; the Language(i) Paper I Hindi Essary carries50 marks and Language(ii) Paper-II English Essay carries 50 marks and for Viva Voce 35 marks areprovided. Thus, for the written examination 300 marks and for viva voce 35 marks are provided. Itis further stated in the writ petition that a candidate who failed to obtain minimum of 45 percentmarks in the aggregate, both of written and oral examination, is not entitled to be recommended bythe RPSC but the petitioner, who obtained `176' raw marks out of 300 marks as per Schedule-IIIwas entitled to be called for interview even as per the ratio 1 : 3 fixed by the RPSC for the candidatesto be called for interview on the basis of the total raw marks but she was not called for interview.

(9) To substantiate the aforesaid, the petitioner has demonstrated certain facts of the result ofscaling formula regarding some of the candidates who have obtained less raw marks which havebeen scaled up and they have been called for interview subsequently selected and appointed whereasthe petitioners who were entitled to be called for interview as per Schedule-III were either not calledfor interview and even if called for interview, were not selected and appointed despite having moreraw marks plus marks of interview on account of applying scaling formula, therefore, by adoptingthe scaling formula, the RPSC has treated un-equals equally and the same has resulted in violationof Article 14 of the Constitution of India.



(10) It has also been stated in the writ petition by Sarita Noushad that in her case, reduction of onemark in scaling has rendered her ineligible to be called for interview.

(11) The State of Rajasthan has not filed reply to the writ petition.

(12) High Court of judicature for Rajasthan, respondent No.3, has filed an affidavit along letterdated 11.9.2007 stating therein that the RPSC has never sought consent/consultation for scalingprocedure to be adopted by it in RJS Examination, 2005.

(13) In the reply filed by the RPSC, it has not been disputed that the RJS Rules, 1955 did not containany scaling formula nor there is any statutory rules framed by the authorities concerned underArticle 309 of the Constitution of India which authorises the RPSC to adopt the scaling formula.However, scaling has been sought to be justified by the RPSC in its reply by saying that the system ofmoderation, normalisation and scaling is an integral part of evaluation and finalisation of result ofthe examination and further, the RPSC has been uniformly applying the said scaling formula in allthe examinations where large number of candidates appear, in order to remove deviation of themarking of the hard examiner and liberal examiner. The scaling formula was adopted from the book- `Scaling Techniques what, why & how by V.Natarajan & K.Gunasekaran, which has been upheld bythe Division Bench of this Court in Mahesh Kumar Khandelwal and 16 others V. State of Rajasthanand others (1995(2) WLC (Raj.) 223).

(14) While deciding Application No.19849 dated 29.5.2009, vide order dated 1.9.2009, this Courtdirected the RPSC to produce the entire original record. Since entire original record was notproduced by the RPSC, therefore, vide order dated 15.9.2009, the RPSC was directed to furnish thefollowing information as per record:

(i) List of the candidates who have obtained minimum 35% actual marks in each law paper and 40%actual marks in the aggregate.

(ii) List of candidates who failed to obtain the aforesaid minimum percentage of marks and afterapplying the formula of scaling obtained minimum 35% marks in each law paper and 40% marks inthe aggregate declared passed.

(iii) List of candidates who as per the actual marks were entitled to be called for interview andfurther, list of the candidates who were not entitled to be called for interview as per actual marks buthave been called for interview by applying the scaling formula.

(iv) The actual marks of the aforesaid candidates in each paper prescribed in Schedule-III andscaled marks of the aforesaid candidates.

(15) On the next date i.e. 29.9.2009, the C.D. as well as the aforesaid lists along with cut off marks asper actual marks and scaled marks have been produced by the RPSC and inspection of the same wasallowed to the respective petitioners. After inspection of the record, most of the petitioners havefiled affidavit(s) to demonstrate unjust, unreasonable and arbitrary result which makes the scaling



formula irrational, which would be examined at the relevant place.

(16) It is submitted by counsel for the petitioners that the RJS Rules, 1955 prescribe specific schemeof examination in Schedule-III appended thereto and as referred in Rule 15 and further, that thenames of the candidates are to be recommended under rule 19 of the RJS Rules, 1955, therefore,specific provision will hold the field and thus, the RPSC has no statutory authority to prescribe thescaling formula and the administrative formula can be only to supplement and not supplant the RJSRules,1955. It is further submitted that the RJS Rules, 1955 are pari materia with the U.P. JudicialService Rules, 2001 wherein the U.P.Public Service Commission was statutorily authorised toprescribe the formula under proviso to Rule 51 of the U.P.Public Service Commission (Procedureand Conduct of Business) Rules, 1976 but still the Supreme Court in Sanjay Singh and another V.U.P.Public Service Commission (2007) 3 SCC 720) has held that the special provision in U.P.Judicial Service Rules, 2001 will prevail. It is submitted by the petitioners that their cases are muchmore stronger than Sanjay Singh (supra) inasmuch as there is no statutory authority vested with theRPSC to prescribe such a scaling formula. It is also submitted that adoption of the administrativescaling formula without consent and consultation of the High Court is wholly beyond thecompetence of the Commission and further resulted in unjust, unreasonable, irrational, arbitraryincrease and decrease of the marks to the detriment of the petitioners and similarly situated personsvis-a-vis persons who were called for interview and subsequently, selected and appointed. The saidarbitrary increase of marks in case of the selected and appointed persons and decrease of marks incase of petitioners and other similarly situated persons is irrational and arbitrary, therefore, thesame is violative of Articles 14 and 16 of the Constitution of India.

(17) Counsel for some of the petitioners have submitted that the scaling formula adopted wasM+[xi-x]Q/Qi and last part of the said scaling formula i.e. Q/Qi is not applicable where there are nodifferent optional subjects and on account of adopting the aforesaid scaling formula, the petitionershave not been called for interview whereas as per the actual marks, they were entitled to beinterviewed. Other counsel have also raised the grievance that on account of scaling, the petitionershave not been selected even after they have been interviewed and having more raw and marks ofinterview.

(18) Lastly, counsel for the petitioners raised the argument regarding adoption of scaling formulaand moderation simultaneously, which is impermissible and scaling of marks in compulsory papershave no relevance to be called for interview and short listing is not permissible.

(19) Counsel for the RPSC has submitted that the scheme of examination under U.P.Judicial ServiceRules, 2001 is different from the RJS Rules, 1955 and the formula is also different which has beenadopted objectively and uniformally to moderate the deviation of the higher marking by the liberalexaminer and hard marking by the hard examiner and placed reliance on a Division Benchjudgment of this Court in Mahesh Kumar Khandelwal V. State (supra) which was upheld by theSupreme Court vide order dated 22.1.1996 in SLP(C) No.15682-84 of 1994.

(20) After recording submissions of the counsel for the petitioners and the respondents on6.10.2009, this Court passed the following order:



From the pleadings of the parties and the submissions made by them on 1.9.2009 and 29.9.2009,the following core questions emerge for decision:

(i) Whether the Rajasthan Judicial Service Rules,1955 (in short `the Rules of 1955'), which havebeen framed in exercise of powers conferred by Article 234 read with Article 238 and proviso toArticle 309 of the Constitution of India and which prescribe specific scheme of examination underRule 15 read with Schedule-III and Rule 19 of the Rules of 1955, will exclude the scheme ofexamination and marking by the R.P.S.C. and further consultation with the High Court is necessaryeven if some administrative formula of scaling for marking is evolved ?

(ii) Whether the scheme of examination of the Rajasthan Judicial Service Rules, 1955 is pari materiawith the U.P.Judicial Service Rules, 2005 ? (Correct year 2001)

(iii) Whether the administrative scaling formula adopted by the Rajasthan Public ServiceCommission is not applicable to the Civil Judge (Junior Division)cum Judicial MagistrateExamination,2005 which was to be conducted as envisaged under Rule 15 read with Schedule-IIIand Rule 19 of the Rules of 1955 wherein there is no such scaling formula prescribed ?

(iv) Whether the aforesaid scaling formula has resulted in unjust, unreasonable and arbitraryincrease and decrease of marks to the detriment of the petitioners and similarly situated personsvis-a-vis persons who have been called for interview and subsequently selected and appointed ?

(v) In case the aforesaid four questions are answered in the affirmative, then whether the judgmentof the Supreme Court in Sanjay Singh and another V. U.P. Public Service Commission, Allahabadand another (2007)3 SCC 720)will cover the controversy raised in these writ petitions and whatrelief can be granted to the petitioners ?

Counsel for the respective petitioners may file affidavit(s) on 08th October, 2009 and counsel forthe respondent R.P.S.C. may file counter affidavit, if any, by 12th October, 2009.

List on 15.10.2009 along with connected cases.

A p h o t o s t a t c o p y o f t h i s o r d e r b e p l a c e d o n t h e f i l e s o f c o n n e c t e d c a s e s C W PNo.5695/2007,3726/2007, 3814/2007, 4109/2007, 4115/2007, 4167/2007, 4227/2007,4384/2007, 5288/2007, 5457/2007, 5618/2007, 6283/2007, 6852/2007, 4350/2008, 417/2009and 418/2009.

(21) On 15.10.2009, after hearing both the sides on the aforesaid questions and affidavits filed by thepetitioners, the judgment was reserved.

(22) We have gone through record of the writ petitions, the record produced by the RPSC and theaffidavits filed by the petitioners and have further considered the rival submissions of counsel forthe parties and examined the same with reference to the RJS Rules, 1955, violation of Articles 14 and16 of the Constitution of India and applicability of the judgment of the Supreme Court in Sanjay



Singh (supra).

(23) Before proceeding further, we would like to refer the fact that although in the RJS Rules, 1955,there is a reference of Article 238 along with Article 234 and proviso to Article 309 of theConstitution of India but the said Article 238 has been deleted by the Constitution (7th Amendment)Act, 1956. The RJS Rules, 1955 have been framed by His Highness the Rajpramukh, afterconsultation with the Rajasthan Public Service Commission and the High Court of Judicature forRajasthan. As regards the procedure for framing of Rules and amendment, there is no dispute thatusually the High Court initiates the process and the Governor, after consultation with the RPSC, hasauthority to promulgate the new Rules or amend the existing Rules. Relevant Rules 7, 14, 15 alongwith Schedule-III and 19 of the RJS Rules of 1955 are as follows:

Rule-7

7.Source of recruitment.- Recruitment to the service, shall be made to the post of Munsiffs on theresult of a competitive examination conducted, by the Commission. (emphasis supplied) Rule-14

14.Examination.- A competitive examination for recruitment to the Service, shall be held at suchintervals as the Governor may, in consultation with the Court, from time to time determine, andshall be conducted by the Commission at such time and at such dates as it may notify. (emphasissupplied) Rule-15

15.Syllabus.- The syllabus and the rules relating to the competitive examination shall be as inSchedule-III:

Provided that they may be amended by the Governor from time to time in consultation with theCommission and the Court. (emphasis supplied) Schedule-III Syllabus for competitive examinationfor recruitment to the Rajasthan Judicial Service A. Competitive Examination for recruitment to theRajasthan Judicial Service shall consist of -

(a) a written examination in the subject hereinafter mentioned and

(b) an interview to test the general knowledge of the candidate and his fitness for appointment.

B. The examination will be in the following subject each subject carrying the number of marksshown against each:

Subject Marks

1.Law Paper-I 100

2.Law Paper-II 100

3.Language(i) Paper I Hindi Essay 50



4.Language(ii) Paper II English Essay 50

5.Viva Voce 35 Law Paper I is designed to test the knowledge of the candidates in civil law andprocedure e.g. drafting, pleading, framing issues and writing out judgments etc. in civil cases.

Law Paper II is designed to test the practical knowledge of the candidates in criminal law andprocedure e.g. Framing charges and writing out judgments etc. in criminal cases.

Law Paper I and II shall be answered either in English or in Hindi but no candidate shall bepermitted to answer any of these papers partly in Hindi and partly in English.

(emphasis supplied) After the marks obtained by the candidates in written test have been receivedthe Commission shall call for interview such of them as have obtained a minimum of 35 percentmarks in each of the law papers and 40 percent marks in the aggregate. (emphasis supplied) Ininterviewing a candidate, the suitability for employment to the Judicial Service shall be tested withreference to his record at the School, College and University and his character, personality addressand physique. The questions which may be put up to him maya be of a general nature and will notnecessarily be academic or legal. The candidate will also be put questions to test his generalknowledge including knowledge of current affairs and present day problems. The marks so awardedshall be added to the marks obtained in the written test by each candidate.

......

Rule-19

19.List of candidates recommended by the Commission.-(1) The Commission shall prepare a list ofthe candidates recommended by them for direct recruitment in order of their proficiency asdisclosed by their aggregate marks. If two or more of such candidates obtain equal marks in theaggregate the Commission shall arrange them in order of merit on the basis of their generalsuitability for service: (emphasis supplied) Provided that the Commission shall not recommend anycandidate who has failed to obtain a minimum of 45% marks in the aggregate both of Written andOral examinations: (emphasis supplied) Provided further that while selecting candidates for thevacancies so advertised, the Commission may (i) if intimation of additional requirement is sent tothe Commission before the selection and (ii) if suitable persons are available, keep on their reservelist more candidates whose number shall not exceed 50% of the advertised vacancies, the names ofsuch candidates may be recommended on requisition to the appointing authorities within sixmonths from the date on which original list is forwarded by the Commsision to the Governor.

(2) Two copies of such list shall be submitted by the Commission to the Governor.

(24) A perusal of the aforesaid provisions of the RJS Rules, 1955 show that in Rule 7, there is areference for holding the competitive examination for recruitment to the service to be conducted bythe Commission as the Governor may, in consultation with the Court, from time to time, determine;in Rule 15 also, there is a reference that the Syllabus and the rules relating to the competitive



examination shall be as in Schedule-III which may be amended by the Governor, from time to time,in consultation with the Commission and the High Court. Then, in Schedule-III, the competitiveexamination has been divided in Part-A and B. Part-A is further divided in part (a) a writtenexamination in the subject hereinafter mentioned and part (b) an interview to test the generalknowledge of the candidate and his fitness for appointment. In Part-B, it has also been mentionedthat after the marks obtained by the candidates in written test have been received, the Commissionshall call for interview such of them as have obtained a minimum of 35 percent marks in each of thelaw papers and 40 percent marks in the aggregate.

(25) As stated above, there is no dispute that for the procedure for framing of Rules andamendment, usually the High Court initiates the process of framing of RJS Rules, 1955/amendmentor course of examination and the Government, after consultation with the High Court, sends arequisition to the Commission for holding the examination. Thus, the RPSC is the examining bodyand has a right to prepare the list of candidates recommended by it for direct recruitment in order oftheir proficiency, as disclosed by their aggregate marks as per Rule 19, which further provides thatthe RPSC shall not recommend any candidate who failed to obtain 45 percent marks in theaggregate for all categories i.e. general as well as reserved category, of both written and oralexamination.

(26) Neither scaling formula prescribed in RJS Rules, 1955 nor the procedure for amendment wasfollowed nor consultation for adoption of the administrative formula was made with the High Court.

(27) In Sanjay Singh V. U.P.Public Service Commission (supra) Rule 16, 19, 20(3) and Note (i) ofAppendix-II of the Rules of 2001 with reference to the U.P.Public Service Commission (Procedureand Conduct of Business) Rules, 1976 have been examined in Para 11.1 and 11.2 to paras 22. Thelanguage of the said Rules is as follows:

Rule 16 "16. Competitive Examination.-The examination may be conducted at such time and on suchdates as may be notified by the Commission and shall consist of -

(a) a written examination in such legal and allied subject including procedure, as may be included inthe Syllabus prescribed under rule 19, unless the same is otherwise modified by the Governor inconsultation with the court and the Commission; (emphasis supplied) Rule 19

19. Syllabus - The syllabus and the rules relating to the competitive examination shall be such asgiven in the Appendix II, provided that the syllabus and rules may be amended by the Governor inconsultation with the Commission and Court."

(emphasis supplied) Judicial Service Rules

20.(3) The Commission then shall prepare a final list of selected candidates in order of theirproficiency as disclosed by aggregate of marks finally awarded to each candidate in the writtenexamination and the interview.



Note(i) of Appendix II - (i) The marks obtained in the interview will be added to the marks obtainedin the written papers and the candidate's place will depend on the aggregate of both. (emphasissupplied) PSC Procedure Rules

51. The marks sheets so obtained shall be opened on the last day of interview and immediatelythereafter the marks of interview/personality test shall be added to the marks obtained by thecandidates in the written examination. Therafter, on the basis of the totals so obtained the merit listshall be prepared and placed before the Commission for final declaration of the result:

Provided that the Commission may, with a view to eliminating variation in the marks awarded tocandidates at any examination or interview, adopt any method, device or formula which theyconsider proper for the purpose. (emphasis supplied) (28) U.P.Public Service CommissionProcedure & Conduct of Business) Rules,1976 are having no relevance in the instant case as theauthority concerned has not promulgated any RPSC Procedure Rules for conducting theexamination and giving statutory authority to the RPSC to adopt any method, device or formulawhich they may consider proper for eliminating variation in the marks awarded to the candidates atany examination. Therefore, for the sake of convenience, we compare the relevant portion of Rule 15read with Schedule-III and Rule 19 of the RJS Rules, 1955 with the relevant portion of Rule 20(3)and Note(i) of Appendix-II of the UP Judicial Service Rules, 2001, which is as under:

RJS Rules,1955 U.P.Judicial Service Rules,2001 Rule-15

15.Syllabus.-The syllabus and the rules relating to the competitive examination shall be as inSchedule-III:

Provided that they may be amended by the Governor from time to time in consultation with theCommission and the Court. (emphasis supplied) Schedule-III Syllabus for competitive examinationfor recruitment to the Rajasthan Judicial Service A.Competitive Examination for recruitment to theRajasthan Judicial Service shall consist of -

(emphasis supplied)

(a) a written examination in the subject hereinafter mentioned and

(b) an interview to test the general knowledge of the candidate and his fitness for appointment.

B. The examination will be in the following subject each subject carrying the number of marksshown against each:

Subject Marks

2.Law Paper-II 100 Hindi Essay English Essay

5.Viva Voce 35



----

After the marks obtained by the candidates in written test have been received the Commission shallcall for interview such of them as have obtained a minimum of 35 percent marks in each of the lawpapers and 40 percent marks in the aggregate. (emphasis supplied) Rule-19

19.List of candidates recommended by the Commission.-


Note(i) of Appendix II - (i) The marks obtained in the interview will be added to the marks obtainedin the written papers and the candidate's place will depend on the aggregate of both. (emphasissupplied) RJS Rules,1955 U.P.Judicial Service Rules,2001 (1) The Commission shall prepare a list ofthe candidates recommended by them for direct recruitment in order of their proficiency asdisclosed by their aggregate marks. If two or more of such candidates obtain equal marks in theaggregate the Commission shall arrange them in order of merit on the basis of their generalsuitability for service: (emphasis supplied) Provided that the Commission shall not recommend anycandidate who has failed to obtain a minimum of 45% marks in the aggregate both of Written andOral examinations: (emphasis supplied) (29) Having reproduced both the Judicial Service Rules,now we proceed to examine the questions with reference to Sanjay Singh (supra) for which thepetitioners submitted that it applies to the present case whereas the respondents submitted that itdoes not apply, which as a matter of fact, is Question No.(v) relates to aforesaid issue and answer ofwhich depends on the answer of Questions No.(i) to (iv).

Question(i) Whether the Rajasthan Judicial Service Rules,1955 (in short `the Rules of 1955'), whichhave been framed in exercise of powers conferred by Article 234 read with Article 238 and proviso toArticle 309 of the Constitution of India and which prescribe specific scheme of examination underRule 15 read with Schedule-III and Rule 19 of the Rules of 1955, will exclude the scheme ofexamination and marking by the R.P.S.C. and further consultation with the High Court is necessaryeven if some administrative formula of scaling for marking is evolved ?

Question No.(i) can be sub divided for the convenience, as follows:

Q.(i)(a) The Scheme of Examination under the RJS Rules,1955 and scaling formula.

(i)(b) Scaling supplement or supplanting the RJS Rules, 1955.

Q.(i)(a) The Scheme of Examination under the RJS Rules,1955 and scaling formula.

(30) Article 238 of the Constitution of India has become redundant, as indicated above and Article234 and proviso to Article 309 of the Constitution of India have been considered by the SupremeCourt in Sanjay Singh (supra) in para 17 and it has been held that the Judicial Service Rules entrust



the function of conducting examinations to the Commission. The Judicial Service Rules do notprescribe the manner and procedure for holding the examination and evaluation of answer scriptsand award of the final marks and declaration of the results. Therefore, it is for the Commission toregulate 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 toregulate the procedure and conduct of the examination, they will naturally apply to any examinationconducted by it for recruitment to any service, including the Judicial Service. But where the JudicialService Rules make a specific provision in regard to any aspect of examination, such provision willprevail, and the provisions of the PSC Procedure Rules, to the extent it is inconsistent with theJudicial Service Rules, will be inapplicable and further held that the field is occupied by Rule 20(3)and Note(i) of Appendix-II which will prevail over the general provision under Rule 51 of the UPPublic Service Commission Rules. Para 17 and 18 of the judgment of the Supreme Court in SanjaySingh (supra) are as under:

17.It is no doubt true that Judicial Service Rules govern the recruitment to Judicial Service, havingbeen made in exercise of power under Article 234, in consultation with both the commission and theHigh Court. It also provides what examinations should be conducted and the maximum marks foreach subject in the examination. But the Judicial Service Rules entrust the function of conductingexaminations to the Commission. The Judicial Service Rules do not prescribe the manner andprocedure for holding the examination and valuation of answer-scripts and award of the final marksand declaration of the results. Therefore, it is for the Commission to regulate the manner in which itwill conduct the examination and value the answer scripts, subject, however, to the provisions of theJudicial Service Rules. If the Commission has made Rules to regulate the procedure and conduct ofthe examination, they will naturally apply to any examination conducted by it for recruitment to anyservice, including the judicial service. But where the Judicial Service Rules make a specific provisionin regard to any aspect of examination, such provision will prevail, and the provision of PSCProcedure 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 ProcedureRules will yield to the Judicial Service Rules. (emphasis supplied)

18.The manner in which the list of candidates as per merit should be prepared is provided both inthe 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 forthe aggregation of marks and preparation of the merit list, are extracted below :-

Judicial Service Rules


Note(i) of Appendix II - (i) The marks obtained in the interview will be added to the marks obtainedin the written papers and the candidate's place will depend on the aggregate of both.



PSC Procedure Rules

51. The marks sheets so obtained shall be opened on the last day of interview and immediatelythereafter the marks of interview/personality test shall be added to the marks obtained by thecandidates in the written examination. Therafter, on the basis of the totals so obtained the merit listshall be prepared and placed before the Commission for final declaration of the result:

Provided that the Commission may, with a view to eliminating variation in the marks awarded tocandidates at any examination or interview, adopt any method, device or formula which theyconsider proper for the purpose.

(emphasis supplied) As the field is occupied by Rule 20(3) and Note (i) of Appendix-II of JudicialService Rules, they will prevail over the general provision in Rule 51 of PSC Procedure Rules.(emphasis supplied) (31) Here in the instant case, there is no dispute that the RJS Rules, 1955 havebeen framed under Article 234 read with proviso to Article 309 of the Constitution of India andthere is no specific provision with regard to scaling of marks. It is also not disputed by the RPSC thatneither there is any statutory rule authorising it to prescribe the scaling formula nor there is such aprovision in the RPSC Manual but the submission on behalf of the RPSC is that the evaluation of theanswer-scripts of the written examination is connected with the examination to be conducted by theRPSC as envisaged under Rules 7 and 14, therefore, the RPSC has inherent right to prescribe theprocedure for examination. In our view, a perusal of Rule 15 read with specific scheme prescribingsyllabus and rules relating to the competitive examination under the RJS Rules, 1955 inSchedule-III leaves no discretion with the RPSC to prescribe any scaling formula and the field isoccupied by Rule 15 read with Schedule-III of the RJS Rules, 1955.

(i)(b) Scaling supplement or supplanting the RJS Rules, 1955.

(32) Adoption of the said administrative scaling formula on the recommendation of the expertcommittee, having no member from the legal field without consultation of the High Court, will beinconsistent with the aforesaid Rule 15 read with Schedule-III of the RJS Rules, 1955 and therefore,the scaling formula is in-applicable. The RPSC is duty bound to follow the RJS Rules, 1955 whichhave been framed in consultation with, both the Commission and the High Court and even if theRPSC wanted to adopt the scaling formula in RJS Examination,2005 then also, the consultationwith the High Court and notification by the Governor is necessary to amend the Rules; otherwise,the same would amount to supplanting the Rules resulting in amendment of the Rules withoutfollowing the due procedure of law. For this reason also, scaling formula will not apply so far as theRJS Rules, 1955 are concerned.

(33) The inherent right of the RPSC for evaluation process is applicable only when there is noinconsistency between the concerned service rules on applying the scaling formula and in case ofany inconsistency, the concept of inherent right will not apply where the Commission is duty boundto conduct the examination as per the Rules concerned under which the advertisement has beenissued.



(34) We answer Question No.(i) in the affirmative that the scaling formula is not applicable to theRJS Rules, 1955 and the same cannot be made applicable on the basis of the recommendations ofthe Committee, without following the procedure as envisaged under Article 234 read with proviso toArticle 309 of the Constitution of India.

Question No.(ii)- Whether the scheme of examination of the Rajasthan Judicial Service Rules, 1955is pari materia with the U.P.Judicial Service Rules, 2005 ? (correct year 2001) (35) Submission ofMr.Kumawat, appearing for the RPSC is that the RJS Rules, 1955 are different from the U.P.Judicial Service Rules, 2001 for the reason that in the RJS Rules, 1955 in Schedule-III, the wordòbtained' mentioned in the line - Àfter the marks obtained by the candidates in written test havebeen received' and further mention of the word òbtained' just before the words minimum of 35percent marks in each of the law papers and 40 percent marks in the aggregate, refers to the marksobtained by the candidate after scaling.

(36) Mr.Kumawat has also submitted that the formula of scaling in Sanjay Singh (supra) and thepresent case is different, therefore, on this count also, no parity can be taken from Sanjay Singh(supra).

(37) We have comparatively examined the relevant part of Rule 15 read with Schedule-III and Rule19 of the RJS Rules, 1955 and Rule 20(3) Note(i) of Appendix-II of the U.P. Judicial Service Rules,2001 which has already been referred while answering Question No.(i).

(38) In Sanjay Singh (supra), in para 18, Note (i) of Appendix-II, the words ` marks obtained' havebeen referred, therefore, the word òbtained' will not make any difference for making applicable thescaling formula. In para 21 of Sanjay Singh (supra) it has been held by the Supreme Court that`scaled scores' or `scaled marks' cannot be considered to be `marks awarded to a candidate in thewritten examination. Para 21 of Sanjay Singh (supra) is as follows:

21.But the question is whether the raw marks which are converted into scaled scores on an artificialscale which assumed variables (assumed mean marks and assumed standard deviation) can beconsidered as 'marks finally awarded' or 'marks obtained'. Scaled scores are not marks awarded to acandidate in a written examination, but a figure arrived at for the purpose of being placed on acommon scale. It can vary with reference to two arbitrarily fixed variables, namely 'Assumed Mean'and 'Assumed Standard Mean'. We have dealt with this aspect in greater detail while dealing withquestion (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 writtenexamination'. Therefore, scaling violates Rule 20(3) and Note (i) of Appendix-II of Judicial ServiceRules. (emphasis supplied) (39) The scaling formula adopted by the RPSC and the UP Public ServiceCommission are as under:

Scaling Formula applied by the Rajasthan Public Service Commission M+(xi-X) o oi Where M =Combined mean of All Examiner/subjects xi = Raw marks X = Examiner/subject mean o = PooledStandard Deviation All Examiners/Subjects oi= Standard Deviation of the Examiners/Subjectsconcerned Scaling Formula applied by the U.P.Public Service Commission Z=Assumed mean+



(X-M) x Assumed SD) SD Z = is the scaled score X = is the raw mark M = is the mean of raw marksof the group/subject SD= is the standard deviation of raw marks of the group/subject.

(40) Mr.Kumawat has submitted that the aforesaid scaling formula of RPSC has been upheld by thisCourt in Mahesh Kumar Khandelwal (supra) which was further upheld by the Supreme Court.

(41) The relevant paras 24, 25, 28, 29, 30.1, 30.2, 30.3, 30.4, 33, 49 of Sanjay Singh (supra) relatingto scaling formula are as under:

24. In the Judicial Service Examination, the candidates were required to take the examination inrespect 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 whichhave a competitive situation where candidates have the option of selecting one or few among avariety of heterogenous subjects and the number of students taking different options also vary and itbecomes necessary to prepare a common merit list in respect of such candidates. Let us assume thatsome candidates take Mathematics as an optional subject and some take English as the optionalsubject. It is well-recognised that a mark of 70 out of 100 in mathematics does not mean the samething as 70 out of 100 in English. In English 70 out of 100 may indicate to an outstanding studentwhereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optionalsubjects may be very easy, when compared to others, resulting in wide disparity in the markssecured by equally capable students. In such a situation, candidates who have opted for the easiersubjects may steal an advantage over those who opted for difficult subjects. There is anotherpossibility. The paper setters in regard to some optional subjects may set questions which arecomparatively easier to answer when compared some paper setters in other subjects who set tougherquestions difficult to answer. This may happens when for example, in a Civil Service examination,where Physics and Chemistry are optional papers, examiner 'A' sets a paper in Physics appropriateto a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. Inview of these peculiarities, there is a need to bring the assessment or valuation to a common scale sothat the inter se merit of candidates who have opted for different subjects, can be ascertained. Themoderation procedure referred to in the earlier para will solve only the problem of examinervariability, where the examiners are many, but valuation of answer scripts is in respect of a singlesubject. Moderation 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 semerit across different subjects, statistical experts have evolved a method known as scaling, that iscreation of scaled score. Scaling places the scores from different tests or test forms on to a commonscale. There are different methods of statistical scoring. Standard score method, linear standardscore method, normalized equi-percentile method are some of the recognized methods for scaling.

25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their publication "Research on Examinations inIndia" 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 inFahrenheit scale. Similarly, when marks are assigned to answer-scripts in different papers, say byExaminer '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 toGeometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a commonscale. Scaling is the exercise of putting the marks which are the results of different scales adopted indifferent subjects by different examiners into a common scale so as to permit comparison of inter semerit. By this exercise, the raw marks awarded by the examiner in different subjects is converted toa 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to acommon scale are known as the 'scaled marks'. Scaling process, whereby raw marks in differentsubjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter seamong the candidates who have taken examinations in different subjects, as, for example, the CivilServices Examination.

28. Let us now examine the reasons as to why the Commission adopted 'scaling' instead ofmoderation. 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 ofwhether 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 meritmay be declared to have failed. Therefore, the Commission constituted a Committee to carry out anindepth study into the matter and suggest appropriate means to ensure that the evaluation was onmore equitable basis. The Committee by its Report dated 2.9.1996 suggested statistical scalingsystem as the remedy and recommended the linear standard score method which operates on thefollowing formula :

Z= Assumed mean + [ (X-M) x Assumed S.D.] SD Z= is the Scaled Score. X = is theRaw mark.

M = is the mean of Raw Marks of the group/subject.

S.D.= is the Standard Deviation of Raw Marks of the group/subject.

The Committee suggested the following 'assumptions' or 'parameters' for applying the formula :

(i) Assumed Mean will be taken as Half of the maximum marks of the group/subject.

(ii) Assumed S.D. will be taken as one-fifth of the assumed mean.

(iii) If scaled score is less than zero after scaling, then candidates will be allotted zero marks in thesaid group/subject.

(iv) If scaled score after scaling is more than maximum marks, then candidate will be allottedmaximum marks in the said group/subject.

29. Ever since then, the Commission has been following the statistical scaling. According to theCommission, the scaling method is rational, scientific and reasonable and would lead to assessmentof 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 methodpresently used for scaling can be continued to be used in future also and there was no need tochange the same. Thus the scaling is continued.

30. We may at this stage refer to the condition to be fulfilled, for scaling to be effective. For thispurpose, we are referring to passages from the Authors/Experts relied on by the Commission itself.

30.1) A. Edwin Harper & Vidya Sagar Misra (in 'Research on Examinations in India) make it clearthat scaling will be useful and effective only if the distribution of marks in the batch of answerscripts sent to each examiner is approximately the same as the distribution of marks in the batch ofanswer scripts sent to every other examiner.

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 conditionsare to be satisfied to apply scaling : (i) The population of students from which the distributions ofscores arose must be assumed to have equal means and dispersions in all the abilities measured bythe different tests; and (ii) the form of distribution, in terms of skewness and kurtosis, must be verysimilar from one ability to another. He proceeds to refer to the disadvantages of scaling thus :

"Unfortunately, we have no ideal scales common to all these tests, with measurements which wouldtell us about these population parameters. Certain selective features might have brought about ahigher mean, a narrower dispersion, and a negatively skewed distribution on the actual continuumof ability measured by one test, and a lower mean, a wider dispersion, and a symmetricaldistribution on the continuum of another ability represented by another test. Since we can neverknow definitely about these features for any given population, in common scaling we often have toproceed on the assumption that actual means, standard deviations, and form of distribution areuniform for all abilities measured. In spite of these limitations, it is almost certain that derivedscales 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 :

"If one studies the literature in this field, he can find that there are a number of methods availableranging from simple to complex. Each has its own merits and demerits and can be adopted onlyunder certain conditions or making certain assumptions."

The Authors describe the Linear Standard Score method (which is used by the Commission) thus :

"Unlike Z-score (Standard score) which has a mean of 'zero' and standard deviation 'one', the linearstandard score has some pre-determined mean and standard deviations.

..the choice of the mean and standard deviations is purely arbitrary. Each has its own advantagesand disadvantages and useful for specific purpose only. It may be emphasized here that both thestandard 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 LinearStandard Scores will also be 'normally' distributed. Taking the Normal Curve as the model, variouspoints in other scales are plotted. It should be, however, noted that the kind of relationship shown inFigure -2 between normal curve vis-`-vis the other scores are valid only if the raw score distributioncan be assumed to approximately normally distributed. (emphasis supplied) 30.4) The KothariReport, 1976 ('Policy & Selection Methods' published by UPSC) while referring to scaling in regardto papers in different subjects, by using appropriate statistical techniques as a recognized procedurefor improving the reliability of examination as a tool for selection, however cautions that the methodshould be under continuous review and evaluation, that continuing improvement in the light ofexperience and new developments, taking into account advancement of knowledge, is essential.

33. We will next refer to apparent anomalies which show scaling of marks is arbitrary. TheCommission has furnished five Tables relating to the five subjects showing the following particulars: (i) The number of examiners, (ii) Number of answer scripts allotted to each examiner; (iii) Meanmarks of each examiner; (iv) Standard deviation of the marks allotted by each examiner; (v)Minimum raw marks secured by a candidate in the batch of answer-scripts corrected by eachexaminer; (vi) Maximum raw marks secured by a candidate in the batch of answer-scripts correctedby each examiner. The Commission has also furnished the tabulation of scaled and actual marks ofall the candidates. An examination of the particulars furnished discloses several glaring anomalies.

49. Learned counsel for the Commission contended that scaling has been accepted as a standardmethod of evaluation in the following decisions and therefore it should be approved :-

(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR 157], upheld by this Court byorder dated 11.3.1987 in SLP (C) No. 14000/1986.

(ii) Mahesh Kumar Khandelwal vs. State of Rajasthan [1994 (1) Raj.LR 533] upheld by this Court byorder dated 22.1.1996 in SLP(c) No. 15682-15684 of 1994. (emphasis supplied)

(iii) K. Channegowda vs. Karnataka Public Service Commission [2005(12) SCC 688).

All the three cases related to moderation and not scaling. There are, however, passing references toscaling as one of the methods to achieve common standard of assessment. The fact that scaling is astandard method of assessment, when a common base has to be found for comparative assessmentof candidates taking examinations in different optional subjects, is not in dispute. In fact theCommission may continue to adopt the said system of scaling, where a comparative assessment is tobe made of candidates having option to take different subjects. The question is whether scaling, inparticular, linear standard scaling system as adopted by the Commission, is a suitable process toeliminate 'examiner variability' when different examiners assess the answer scripts relating to thesame subject. None of the three decisions is of any assistance to approve the use of method of'scaling' used by the Commission. (emphasis supplied) (42) On comparing the scaling formuladiscussed by the Supreme Court in Sanjay Singh (supra) and the scaling formula adopted by theRPSC in the instant case, the applicability of which has been discussed while dealing with QuestionNo.(i), we find from record that increase/decrease of the marks of the petitioners rendered them



either ineligible for interview and even if interviewed after scaled marks, then the same resulted intheir non-selection whereas persons who have been selected and appointed were not even eligiblefor interview as per the raw marks. Our conclusion is that the RJS Rules, 1955 and the U.P.JudicialService Rules, 2001 are pari materia and both the scaling formulas are of similar nature and further,the same is not of moderation which has been upheld in Mahesh Kumar Khandelwal (supra) anddistinguished in Para 49 of Sanjay Singh (supra).

(43) In view of the above, Question No.(ii) is also answered in the affirmative and it is held that theRJS Rules, 1955 are pari materia with the UP Judicial Service Rules, 2001 in the matter of selectionand appointment.

Question No.(iii)- Whether the administrative scaling formula adopted by the Rajasthan PublicService Commission is not applicable to the Civil Judge (Junior Division)cum Judicial MagistrateExamination,2005 which was to be conducted as envisaged under Rule 15 read with Schedule-IIIand Rule 19 of the Rules of 1955 wherein there is no such scaling formula prescribed ?

(44) This question has already been discussed while answering Question Nos.(i) and (ii) inaffirmative wherein Rule 15, Schedule-III and Rule 19 of the RJS Rules, 1955 have been interpretedand there is no dispute that the RJS Rules of 1955 do not prescribe any scaling formula, and further,the scaling formula violates Rule 15 read with Schedule-III and Rule 19 of the RJS Rules, 1955,therefore, Question No.(iii) is also answered in the affirmative.

Question No.(iv) Whether the aforesaid scaling formula has resulted in unjust, unreasonable andarbitrary increase and decrease of marks to the detriment of the petitioners and similarly situatedpersons vis-a-vis persons who have been called for interview and subsequently selected andappointed ?

(45) Some of the details of the record produced by the RPSC in the form of lists (i) to (iv) are asfollows:

(i) Out of 12,576 applicants who appeared in the examination, in all 1979 candidates obtained 35%marks in each law paper and 40% in the aggregate as per Schedule-III.

(ii) In list (ii) the RPSC has pointed out that 396 candidates were not qualified as per actual marksobtained 35% in each law paper and 40% in the aggregate but have been declared qualified as perscaled marks;

(iii) as per list (iii), 1306 general candidates were entitled to be called for interview as per actualmarks, SC 131, ST- 42 and OBC 500 candidates,

(iv) in list (iv), the RPSC has placed on record list of the actual/scaled marks of the aforesaidcandidates in each law paper.



(46) Usually, the accepted practice of the RPSC is to call the candidates in the ratio of 1:3 and in thisparticular case, the RPSC has called 244 candidates for interview as per the scaled marks.

(47) To answer Question No.(iv) with reference to RJS Rules, 1955 and violation of Article 14 of theConstitution of India, the cut-off marks on the basis of raw marks and cut-off marks on the basis ofscaled marks as well as increase or decrease of scaled marks of the petitioners and other similarlysituated persons vis-a-vis persons who were called for interview and subsequently selected andappointed, can be divided in two categories i.e. (a) the petitioners who were entitled to be called forinterview as per raw marks but have not been called for interview and (b) even if called forinterview, then could not be selected on account of higher scaled marks of the persons selected andappointed. Before making table of the aforesaid two categories, the cut off marks as per raw marksand cut off marks as per scaled marks of the various categories are also relevant which are asfollows:

Cut off marks as per raw marks for calling the candidates for interview Category Cut off marksGeneral General Women SC General Women ST General Women 120 all candidates OBC GeneralWomen Cut off marks as per scaled marks for calling the candidates for interview Category Cut offmarks General General Women SC General Women ST General Women OBC General Women (48)On account of scaling, there is increase of 5 cut off marks in the general category and womencandidates; increase of 3 marks in the SC (General) and 7 marks in SC (women) whereas there isincrease of 8 marks in OBC general and women candidates on account of scaling. Thus, it appearsthat several candidates who were entitled to be called for interview as per the cut off marks as perraw marks have not been called for interview in all the categories except ST category on account ofincrease in the cut off marks.

(49) In order to decide further the aforesaid controversy of violation of Article 14 of the Constitutionof India, the scaling formula adopted by the RPSC is to be considered in tabulation form whichrender eligible candidates to be ineligible for interview and even if interviewed and got higher rawmarks + interview, but not selected and appointed on account of higher scaled marks along withextreme variation.

(50) We accept ratio of 1:3 to be called for interview. For the sake of convenience, and in order toexamine the issue of irrationality and arbitrariness, the following Tables-1 to 6 are being reproducedon the basis of the aforesaid record.

TABLE-1 PETITIONERS WHO WERE ENTITLED TO BE CALLED FOR INTERVIEW AS PER RAWCUT OFF MARKS BUT HAVE NOT BEEN CALLED FOR INTERVIEW ON ACCOUNT OF SCALEDCUT OFF MARKS S.No.

Name of petitioner with WP No., Roll No. and Category Total raw marks Cut off marks as per rawmarks of the category Scaled Marks Scaled cut off marks of respective category Increase or DecreaseMrs.Sarita Noushad WP No.3942/2007 Roll No.709389 BC WE (-) 9 Ashutosh Kumawat WPNo.3942/2007 Roll No.101765 GE (+) 1 Rajan Khatri WP No.3814/2007 Roll No.708713 GE (-) 10Miss Toshita Verma WP No.4109/2007 Roll No.702675 BC WE (-) 9 Sarita Dhakad WP



No.4115/2007 Roll No.711518 BC WE (+) 1 Miss Divya Singh WP No.4227/2007 Roll No.706120 GEWE (-)1 TABLE-2 LIST OF THE PETITIONERS WHO HAVE BEEN CALLED FOR INTERVIEWAND OBTAINED MORE RAW MARKS PLUS INTERVIEW MARKS THAN THE SELECTED ANDAPPOINTED CANDIDATES, LOWEST IN THE RESPECTIVE CATEGORY, AS PER THEIR RAWMARKS PLUS INTERIVEW MARKS Name of the Petitioner with Roll No. Category & WP No. Totalraw marks Interview marks Total Name of the candidate selected and appointed, with Roll No. andCategory Total raw marks Interview marks Total Ms Preeti Sharma Roll No.711902 GE WE WPNo.418/2009 Girja Bhardwaj GE WE Roll No.704013 (M-35) Ramchand Gehlot Roll No.500877 GENG RG WP No.6852/2007 Mukesh Parnami Roll No.700348 SC WP No.417/2009 Prem SinghDhanwal SC Roll No.706187 (M-68) Bhaskar Dagar Roll No.710828 SC WP No. 417/2009 NarendraMeena Roll No.500268 ST WP No.5457/20078 Brijendra Rawat (ST) Roll No.500803 (M-67)Hemraj (ST) Roll No.100691 (M-77) Ritu Meena (ST) WE Roll No.704340 (M-78) Dhanpat MaliRoll No.700726 BC WP No.5695/2007 Arvind Jangid (BC) Roll No.713202 (M-34) Lalit PuriGoswami Roll No.301106 (BC) (R-20) Zafar Ahmed Qureshi (BC) Roll No.101441 (M-41) TABLE-3EXAMPLES SHOWING THAT '0' MARK WAS ALSO SCALED IN COMPULSORY PAPERSHAVING NO RELEVANCE AS PER SCHEDULE-III TO BE CALLED FOR INTERVIEW S.No.

Name of the candidate(s) with Roll No. & Category Total raw marks Marks increased after scalingVariati-on (+) Rajesh Kumar Matolia Roll No.200165 GE 0 (English) Amit Srivastava RollNo.201019 GE 0 (English) Hemant Kumar Dhandey Roll No.300586 SC 0 (English) Deepak KumarRoll No.701603 GE 0 (English) Rajendra Prasad Meena Roll No.704216 ST LV 0 (English) RajendraKumar Roll No.704470 BC 0 (English) Bhanu Dev Sharma Roll No.706574 GE 0 (English) SheeshRam Gothwal Roll No.709043 SC 0 (English) Meetha Lal Gujar Roll No.713288 BC 0 (English) (51)The marks of the aforesaid candidates have been increased by scaling in other subjects also whichmight have resulted in making them qualified for interview. However, two specific instances ofmaking such candidates who were not qualified for interview as per raw marks but on account ofincrease in scaling became qualified for interview in the aforesaid category, given by the petitionersand recorded in the order sheet dated 29.9.2009 are as under:

TABLE-4 Name & Roll No. with category Total raw marks Total scaled marks Cut off marks as perraw marks of the category Cut off marks as per scaled marks Variation/Deviation Dhirendra Singh(SC) Roll No.701454 (+) 5 Rajendra Kumar Meena (ST) Roll No.704216 (+) 12 TABLE-5 SOME OFTHE EXTREME VARIATION CASES OF THE PERSONS WHO HAVE OBTAINED HIGHERP O S I T I O N I N M E R I T O N A C C O U N T O F S C A L I N G W H I C H H A S R E S U L T E D I NNON-SELECTION OF MANY OTHER CANDIDATES ON ACCOUNT OF SCALING DOWN OFTHEIR MARKS S.No.

Name of the candidate(s) with Roll No. & Category (S) Indicates Selected (M) Indicates merit no. inthe select list (R) indicates merit no.in reserve list Total raw marks Scaled Marks Increase orDecrease Geeta Choudhary 300160 BC/WE (S/M-40) (+)19 Anita Tailor 500340 BC/WE (S/M-48)(+) 17 Asha Choudhary 706311 BC/WE (S/M-49) (+)16 Poonam Sharma 201523 GN/WE (S/M-33)(+) 18 Rakesh Ramawat 300174 BC (S/M-3) (+) 22 S.S.Shekhawat 704862 GE (S/M-6) (+) 19Manoj Joshi 300388 GE(WE) (S/M-9) (+) 14 Ramdeo Sandoo 301122 BC (S/M-10) (+) 20 ManishKumar 500456 BC (S/M-15) (+) 12 Satya Prakash Soni 711964 BC (S/M-18) (+) 12 Sunil Kumar



Ojha 501204 GE (S/M-20) (+) 19 Yashwant Bhardwaj 701289 GE (S/M-22) (+) 11 Deepak KumarSoni 710569 BC NG RG (S/M30) (+) 12 Abhilasha Sharma 501095 GE WE (S/M-31) (+) 12 PoonamSharma 201523 GenWE (S/M-33) (+) 16 Arvind Kumar Jangid 713202 BC (S/M-34) (+) 24Surendra Chaudhary 706669 BC (S/M-39) (+) 11 Zafar Ahmed 101441 BC (S/M-41) (+) 12 LaxmanRam Bishnoi 202598 BC RG (S/M-42) (+) 14 Arun Godara 705559 BC (S/M-43) (+) 12 PramodKumar Sharma 401292 GE (R/3) (+) 15 Mahendra Singh 703303 BC (S/M-45) (+) 11 TABLE-6 LISTOF SELECTED AND APPOINTED PERSONS WHO FAILED TO OBTAIN MINIMUM 45% MARKSAS PER THE RAW MARKS PLUS INTERVIEW MARKS WHICH IS THE REQUIREMENT OFRULE 19 OF THE RJS RULES,1955 i.e. 45% MARKS OUT OF 335 MARKS=150.75 OR SAY 151,AND THE SAME IS APPLICABLE TO RESERVED CATEGORIES ALSO, THEREFORE THEYCOULD NOT HAVE BEEN SELECTED AND APPOINTED BUT HAVE BEEN SELECTED ANDAPPOINTED ON ACCOUNT OF SCALED MARKS S.No.

Name of the candidate(s) with Roll No.& Category with Merit No. in the select list Total Scaledmarks + interview marks Total Raw Marks + interview marks Difference of marks as a result ofscaling Rashmi Arya (SC WE) Roll No.401201 (M-72) 145+17=162 129+17= 146 (+) 16 Hem Raj RollNo.100691 (ST) M-77 130+21=151 115+21= 136 (+) 15 Ritu Meena (ST) Roll No.704340 (M-78)133+18=151 128+18= 146 (+) 5 (52) There are joint writ petitions also, therefore, there may be someof the petitioners who were entitled to be called for interview as per the raw cut off marks and havenot been called for interview, and further there might have been some other candidates who hadlesser raw marks plus interview marks than the petitioners, who have been called for interview andhave been selected and appointed. The aforesaid complete/correct details of some of the petitionershave not been made available.

(53) The marks obtained in the compulsory papers are having no relevance for deciding theeligibility of a candidate for interview for which 35% marks in each law paper and 40% in theaggregate are to be seen but still, scaling has been done in regard to the marks of compulsorysubjects. The RPSC has also ignored the fact that there is no much scope of variation in the markingof Law Paper-I and II considering the syllabus.

(54) Though the specific record called by this Court from the RPSC is bulky, we have been able topoint out the aforesaid instances with the assistance of counsel for both the parties as per the saidrecord. There may be some other such instances of the various categories indicated above.

(55) While considering extreme variation also in raw and scaled marks, the Supreme Court in SanjaySingh (supra) observed that there were candidates who actually secured zero marks have strangelybeen assigned scaled marks ranging from 36 to 67 depending upon the examiner, in whose pool,they fell. The scaling has equalised the different high end marks of candidates, where the meanmarks is low. The scaling has also equalised the different low end marks of candidates, where themean marks is high. This leads to unequals being treated as equals. That apart, low raw marks werefurther lowered (or made into `0') and higher raw marks were further increased due to scaling. Theparas 35 and 37 of Sanjay Singh (supra) are relevant and the same are as under:



35.We find from Table-II (furnished by the Commission) that the answer scripts relating toLanguage Paper were distributed among 14 examiners. Several candidates whose papers wereevaluated by examiners 2, 3, 4, 5, 6, 8, 13, & 14 have secured zero marks. Evidently only those whodid not attempt any answer or had absolutely no knowledge of either Hindi or English would havegot zero marks. But such candidates who actually secured zero marks have strangely been assignedscaled marks ranging from 36 to 67, depending upon the examiner, in whose pool, they fell. We givebelow scaled marks obtained by different candidates who secured zero marks with reference to theexaminers. (emphasis supplied) Subject : Language Examiner No. Raw marks of the candidateScaled marks (100)+(0-66.58 x20) = 44 23.73 100+(0-55.29 x20) = 47 20.91 100+(0-74.88 x20) = 0(-5 to be taken as zero) 14.20 100+(0-44.48 x20) = 58 20.06 100+(0-61.52 x20) = 50 24.8100+(0-52.86 x20) = 67 31.75 100+(0-43.11 x 20) = 66 25.50 100+(0-54.77 x20) = 36 17.02 Butunfortunately in the same subject, candidates who secured 32 to 30 marks, assessed by ExaminerNo.10, got their marks reduced to 31 to 28 on scaling. (Mean being 80.93 and SD being 14.16). Thedevastating effect of awarding such high scaled marks, that too ranging from 36 to 67, to those whohave secured '0' need not be stressed. In fact UPSC has clarified that whenever they follow scalingprocedure, no scaling is applied to '0' marks. But the Commission had not applied its mind to thisaspect when applying 'scaling'.

Para 37.The scaling has also equalized the different low end marks of candidates, where the meanmarks is high. To give a hypothetical example, if the mean marks is 95 and the standard deviation is11, then all candidates securing 40 and below will be awarded only '0'. To give a concrete example, inregard to Examiner No. 7 in Law Paper-II, one candidate has secured 32. In respect of thatexaminer, 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 ofall candidates who were given raw marks of 37 and less by that examiner, becomes '0'. This leads tounequals being treated as equals and candidates who secured marks in the lower ranges (from thatexaminer) losing out to candidates who performed much worse but were in the pool of otherexaminers.

(56) The aforesaid tabular forms Tables-1 to 6, of RJS Examination, 2005 clearly reveal that unjustincrease and decrease in the raw marks of the petitioners and selected candidates by way of scalinghas further rendered the petitioners either ineligible for interview or even if interviewed, they havenot been selected and appointed, whereas candidates, who were not eligible for interview as per rawmarks and their marks have been scaled up, as a result of which they have been selected andappointed. The scaling of marks results in irrational and arbitrary increase and decrease of marksamongst the selected and appointed candidates and the petitioners and the same is treatingunequals equally in the matter of marking in direct recruitment, therefore, it is violative of Articles14 and 16 of the Constitution of India. Therefore, Question No.(iv) is answered in the affirmative.

Question No.(v) In case the aforesaid four questions are answered in the affirmative, then whetherthe judgment of the Supreme Court in Sanjay Singh and another V. U.P. Public Service Commission,Allahabad and another (2007)3 SCC 720) will cover the controversy raised in these writ petitionsand what relief can be granted to the petitioners ?



(57) In Sanjay Singh (supra), the Supreme Court while over ruling its earlier decision in U.P.PublicService Commission V.Subhash Chandra Dixit and others (2003) 12 SCC 701), has held in paras 48,49, 50, 51, 52 and 53 that neither of the two assumptions made therein can validly continue to applyto the present type of examination and further the judgment of the Division Bench of this Court inMahesh Kumar Khandelwal (supra) relates to moderation and not scaling. Para 49 of Sanjay Singh(supra) is as under:

49. Learned counsel for the Commission contended that scaling has been accepted as a standardmethod of evaluation in the following decisions and therefore it should be approved :-

(i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR 157], upheld by this Court byorder dated 11.3.1987 in SLP (C) No. 14000/1986.

(ii) Mahesh Kumar Khandelwal vs. State of Rajasthan [1994 (1) Raj.LR 533] upheld by this Court byorder dated 22.1.1996 in SLP(c) No. 15682-15684 of 1994. (emphasis supplied)

(iii) K. Channegowda vs. Karnataka Public Service Commission [2005(12) SCC 688).

All the three cases related to moderation and not scaling. There are, however, passing references toscaling as one of the methods to achieve common standard of assessment. The fact that scaling is astandard method of assessment, when a common base has to be found for comparative assessmentof candidates taking examinations in different optional subjects, is not in dispute. In fact theCommission may continue to adopt the said system of scaling, where a comparative assessment is tobe made of candidates having option to take different subjects. The question is whether scaling, inparticular, linear standard scaling system as adopted by the Commission, is a suitable process toeliminate 'examiner variability' when different examiners assess the answer scripts relating to thesame subject. None of the three decisions is of any assistance to approve the use of method of'scaling' used by the Commission. (emphasis supplied) (58) As regards other issues, we are of theview that the same are touching the selection process from the very beginning, therefore, we leavethe same open for decision at the appropriate stage in some other case.

(59) Although the formula adopted by the RPSC produced unjust, unreasonable, irrational andarbitrary result, as held in answer to Question No.(iv) but as the selection process was over in2007/early 2008 & the appointments have also been made and almost one year and a half haspassed after the appointments, therefore, we do not want to disturb the appointments already made.However, it is admitted case of the parties that the direct recruitment pursuant to the RJSExamination, 2008 is pending. The petitioners have asserted that even after the advertisement of2008, the vacancies of the posts of Civil Judge (Junior Division) are available and there is no denialto the specific query of availability of the vacant posts of Civil Judge (Junior Division) even after theadvertisement issued in 2008. Otherwise also, recruitment in RJS has to be made from time to timeas per the RJS Rules, 1955 therefore, the same is on going process and there hardly remains anypoint of time when there may not be vacancies.



(60) Supreme Court in SLP (C) No.10539/2007 filed by Sarita Noushad and another SLP (C)No.10631/2007 while making the further appointments subject to the decision of the writ petitions,on 12.12.2008, requested this Court for early disposal of the writ petition at an early date but thewrit petitions could not be disposed of for one reason or the other. As held above, the personsselected and appointed against the vacancies of the RJS Examination, 2005 have worked for oneyear and a half, therefore, we have not disturbed their appointments. But still, in the aforesaid factsand circumstances of the present writ petitions, the issue remains that most of the petitioners, whohave approached the Court in time in 2007, either before interview or just after interview, havesuffered on account of scaling which has already been declared illegal while answering QuestionsNo.(i) to (iv) in the affirmative and the delay in disposal of the writ petitions may not be allowed tostand in their way for granting relief for all times to come and simply on the ground that theadvertised vacancies have been filled up even after obtaining more raw marks plus interview marksand some of them have also been deprived of interview as per their raw marks and cut off marksworked out on the basis of raw marks in the RJS Examination, 2005. In order to save the petitionersfrom injustice which has been caused on account of violation of RJS Rules, 1955 and violation ofArticles 14 and 16 of the Constitution of India, as discussed in detail in the preceding paras,Question No.(v) is also answered in the manner that Sanjay Singh (supra) is fully applicable to thefacts and circumstances of the present cases.

(61) The ends of justice can only be met out if the petitioners' cases are considered for futurevacancies as the same relief has been granted by the Supreme Court in Sanjay Singh (supra).Therefore, the writ petitions succeed and the same are allowed as indicated below:

(i) RPSC is directed to prepare the list of the candidates of RJS Examination,2005 as perSchedule-III of the RJS Rules,1955, to be called for interview as per raw cut off marks for thepurpose of ascertaining whether any of the petitioners was entitled to be called for interview in theirrespective categories.

(ii) RPSC is further directed to prepare a list as per Schedule-III of the RJS Rules, 1955, of RJSExamination,2005, of the petitioners who have obtained more raw marks plus interview marks thanthe selected and appointed candidates, in their respective categories.

(iii) All the petitioners who were entitled for interview as per Schedule-III in the ratio of 1:3 in theirrespective category as per their raw marks considering the fact of cut off raw marks but have notbeen called for interview, as per Relief No.(i), be now called for interview along with the candidatesto be interviewed for the examination of RJS 2008 and further, in case they obtain more rawmarks+interview marks than the candidates of the merit list of the RJS Examination,2005 as pertheir raw marks + interview marks, then their cases may be considered for appointment againstfuture vacancies and if found suitable, respondents may issue appropriate orders before finalisingthe selections and appointment pursuant to the RJS Examination, 2008.

(iv) The petitioners who have been interviewed but could not be selected on account of scaling downtheir marks and scaling up the marks of the selected and appointed persons as referred in ReliefNo.(ii) and have further obtained more than 45 per cent raw marks+interview marks in the



aggregate higher than persons already selected/appointed as per raw marks and interview marks ofRJS Examination, 2005 be considered for appointment against future vacancies and in case they arefound suitable, then, respondents may issue appropriate orders before finalising the selections andappointment of RJS Examination, 2008;

(62) A copy of this order be placed on the files of all the connected cases.

(Guman Singh) J. (Prem Shanker Asopa) J.




himanshu agarwal and ors vs r p s c, ajmer on 27 october, 2009

Documents

civil writ petition

others12 d

others10 d

others4 d

others16 d

behalf of mr

rpsc mr

petitioners mr