2007 Supreme(SC) 29

2007(1) Supreme 639
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., C.K. Thakker and R.V. Raveendran, JJ.
Sanjay Singh & Anr.—Petitioners
versus
U.P. Public Service Com., Allahabad & Anr.—Respondents
Writ Petition (C) No. 165 of 2005
With
W.P. (C) Nos. 172, 409, 466 and 467 of 2005
Decided on 9-1-2007
Counsel for the Parties :
For the Appearing Parties : P.P. Rao, Ms. Shobha Dikshit, Sr. Advocates, Ejaz Maqbool, Saurabh Kirpal, M.K. Bhardwaj, K.L. Janjani, Debasis Misra, Y.P. Singh, C. Siddharth, Ms. P. Purnima, H. Devarajan, P.N. Gupta, Jatin Zaveri, Shail Kumar Dwivedi, G.V. Rao, Abhishek Kumar, Anshuman Ashok, Purushottam Tripathi, Pradeep Misra, S.W.A. Qadri (for Mr. Kamlendra Mishra), Manoj K. Mishra, Ms. Anju, Ms. Sheela, Sanjay Visen, Amit Yadav, Anish Kumar Gupta, Y.P. Singh, C. Siddharth, M.B. Aggarwal, Advocates.
For the Petitioner-in-Person : Sanjay Singh.

IMPORTANT POINTS
1. The scaling system adopted by the Service Commission is unsuited in regard to Civil Judges (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination conducted by the Uttar Pradesh Public Service Commission.
2. A judgment of the Supreme Court cannot be challenged in a petition under Article 32 of the Constitution. It can, however, be reviewed under Article 137 or in exceptional circumstances reconsidered in exercise of inherent power, on a curative petition.

Headnote:(i) SERVICE LAW—U.P. Judicial Service Rules, 2001 as amended by (Amendment) Rules, 2003—Rules 7, 16, 19 and 20—Recruitment to the post of Civil Judge—Statistical scaling system adopted by the Public Service Commission—Validity challenged—To conduct examination for filling 347 posts of Civil Judge (Junior Division), 51524 candidates appeared for preliminary examination which was of ‘objective’ type—6046 candidates declared qualified to appear for Main Examination which was of ‘descriptive’ type consisting of five papers—5748 candidates appeared for the said examination—Answer scripts relating to each subject were distributed to several examiners for valuation—Marks assigned by examiners were subjected to ‘statistical scaling’ and results of written examination based on such scaled marks were declared—After interview, Commission declared final results of the examination based on aggregate of ‘scaled marks’ in the written (Main) examination and the marks awarded in the interview—On recommendations made by Commission, appointments were made to 347 posts of Civil Judge—Petitioners, unsuccessful candidates challenged selections alleging that the statistical scaling system adopted by the Commission is illegal as it is contrary to the Rules—This Court in S.C. Dixit has rejected identical grounds—Petitioners claim that ratio decidendi of the decision in S.C. Dixit upholding the Commission’s system of scaling of marks requires reconsideration—Whether writ petitions filed are maintainable—Held, No—Whether ‘scaling system’ adopted by the Commission for selection of Civil Judges is arbitrary and irrational—Held, Yes—Whether selections already made which are the subject matter of these petitions, should be interfered with—Held, No—Court issues directions to do complete justice on the facts of the case—Allowing the petitions in part.

       Held : In regard to decisions of civil courts in suits governed by Civil Procedure Code or appeals therefrom, the term ‘judgment’ refers to the grounds of a decree or order, ‘decree’ refers to the formal expression of an adjudication in a suit and ‘order’ refers to formal expression of any decision of a civil court which is not a decree. In regard to the decisions of High Court and Supreme Court in writ jurisdiction, the term ‘judgment’ is normally used to refer to the ‘judgment and order’, that is the grounds for the decision and the formal expression of the decision. The petitioners do not seek to upset the ‘order’ part of the judgment in S.C. Dixit (supra) which decided the validity of UP Civil Judge (Junior Division), Examination, 2000, held under the UP Nyayik Sewa Niyamawali 1951. The grievance of the petitioners is in regard to the UP Civil Judge (Junior Division) Examination, 2003, held under the UP Judicial Service Rules 2001. They, however, contend that the ratio decidendi of the decision in S.C. Dixit upholding the Commission’s system of scaling of marks in written examination, requires reconsideration. Therefore, these petitions are neither for ‘review’ nor for ‘setting aside’ or ‘questioning’ the decision in S.C. Dixit. Therefore, the bar, referred to in Rupa Ashok Hurra, will not apply.(Para 9)

       Rule 20(3) provides that the final list of selected candidates in order of their proficiency as disclosed by the aggregate of ‘marks finally awarded to each candidate in the written examination and the interview”. Note (i) to Appendix II of the Judicial Service Rules provides that the “marks obtained in the interview” will be added to “the marks obtained in the written papers” and that the candidate’s place will depend on the aggregate of both. Though Judicial Service Rules refers to ‘marks finally awarded’, the said Rules do not contain a provision similar to the proviso to Rule 51 of PSC Procedure Rules, enabling the Commission to adopt any method, device or formula to eliminate variation in the marks. It is not possible to read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note (i) of Appendix-II of Judicial Service Rules. It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the courts can adopt a construction which will carry out the obvious intention of the legislative or rule making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read as they are without the addition of the proviso to Rule 51 of PSC Procedure Rules. If so, what can be taken into account for preparing final list of selected candidates, are ‘marks finally awarded to a candidate’ in the written examination and the interview. The marks assigned by the examiner are not necessarily the marks finally awarded to a candidate. If there is any error in the marks awarded by the examiner it can always be corrected by the Commission and the corrected marks will be ‘the final marks awarded to the candidate’. Where the Commission is of the view that there is ‘examiner variability’ in the marks (due to strict or liberal assessment of answer scripts) or improper assessment on account of erratic or careless marking by an examiner, they can be corrected appropriately by moderation.(Para 19)

       In the Judicial Service Examination, the candidates were required to take the examination in respect of the all five subjects and the candidates did not have any option in regard to the subjects. In such a situation, moderation appears to be an ideal solution. But there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogenous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates.(Para 24)

       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 se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a common scale. There are different methods of statistical scoring. Standard score method, linear standard score method, normalized equi-percentile method are some of the recognized methods for scaling.(Para 24)

       We may now summarize the position regarding scaling thus :

       (i)Only certain situations warrant adoption of scaling techniques.

        (ii)There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions.

       (iii)Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner.

       (iv)In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability.

       (v)Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process.

       (vi)Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the ‘hawk-dove’ effect (strict/liberal valuation).

       The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in Para 23 above with appropriate modifications. (Para 36)

       The petitioners have requested that their petitions should be treated as being in public interest and the entire selection process in regard to Civil Judge (Junior Division) Examination, 2003 should be set aside. We are unable to accept the said contention. What has been made out is certain inherent defects of a particular scaling system when applied to the selection process of the Civil Judges (Junior Division) where the problem is one of examiner variability (strict/liberal examiners). Neither mala fides nor any other irregularities in the process of selection is made out. The Commission has acted bona fide in proceeding with the selection and neither the High Court nor the State Government had any grievance in regard to selections. In fact, the scaling system applied had the seal of approval of this Court in regard to the previous selection in S.C. Dixit (supra). The selected candidates have also been appointed and functioning as Judicial Officers. Further as noticed above, the scaling system adopted by the Commission has led to irrational and arbitrary results only in cases falling at the ends of the spectrum, and by and large did not affect the major portion of the selection. We, therefore, direct that our decision holding that the scaling system adopted by the Commission is unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation, will be prospective in its application and will not affect the selections and appointments already made in pursuance of the 2003 Examination.(Para 41)

       However, in so far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case :

       a)If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) No. 165/2005 belonging to the Category ‘BC’ have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. [C] No.165/2005 is less than the marks of the selected candidates).

       b)Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. (For example, we find that petitioner Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates [347, 337, 336, 383 and 335] under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment). This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31st August, 2005. (Para 42)

       (ii) Constitution of India—Articles 32 and 137—Writ petition—Maintainability to challenge judgment of this Court—Held, a judgment of this Court cannot be challenged in a petition under Article 32—It can, however, be reviewed under Article 137 or in exceptional circumstances reconsidered in exercise of inherent power, on a curative petition—A final judgment of a High Court can be challenged only by an appeal under Articles 132 to 134 or by obtaining ‘special leave’ under Article 136 and not by a petition under Article 32.

       Held : It is true that a judgment of this Court cannot be challenged in a petition under Article 32. It can, however, be reviewed under Article 137 or in exceptional circumstances reconsidered in exercise of inherent power, on a curative petition (See Rupa Ashok Hurra). It is equally true that a final judgment of a High Court can be challenged only by an appeal under Articles 132 to 134 or by obtaining ‘special leave’ under Article 136 and not by a petition under Article 32.(Para 8)

       (iii) SERVICE LAW—Procedure of selection on basis of written examination of descriptive type—Valuation of answer scripts—Scaling Method and Moderation System, procedure to reduce examiner subjectivity or variability.

       Held : When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer-scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer-scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is ‘Hawk-Dove’ effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is ‘reduced valuation’ by a strict examiner and ‘enhanced valuation’ by a liberal examiner. This is known as ‘examiner variability’ or ‘Hawk-Dove effect’. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of ‘examiner subjectivity’ or ‘examiner variability’ is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows :

       (i)The paper-setter of the subject normally acts as the Head Examiner for the subject. He is selected from amongst senior academicians/scholars/senior civil servants/Judges. Where the case of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation.

       (ii)To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary.

       (iii)After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks etc. may also be prepared in respect of the valuation of each examiner.)

       (iv)After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggest upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner.

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

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

       The above procedure of ‘moderation’ would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity.(Para 23)