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Bhanwar Lal Vs. State and anr - Court Judgment

LegalCrystal Citation
CourtRajasthan Jodhpur High Court
Decided On
AppellantBhanwar Lal
RespondentState and anr
Excerpt:
sbcwp no.1211/2014 – bhanwar lal vs. state & ors. a/w 6 connected matters judgment dt:26/11/2014 1/83 in the high court of judicature for rajasthan at jodhpur judgment (i) bhanwar lal vs. state of rajasthan & ors. s.b.civil writ petition no.1211/2014 (ii) rajendra prasad gora vs. r.p.s.c. s.b.civil writ petition no.6249/2014. (iii) tara chand & ors. vs. r.p.s.c. s.b.civil writ petition no.6250/2014 (iv) ravindra mohan sharma vs. r.p.s.c. s.b.civil writ petition no.6252/2014. (v) balwant singh vs. r.p.s.c. s.b.civil writ petition no.6253/2014. (vi) joga ram & ors. vs. r.p.s.c. s.b.civil writ petition no.6254/2014. (vii) lokendra kumar charoria vs. state & anr. s.b.civil writ petition no.6255/2014. date of judgment :26. h november, 2014 present hon'ble dr.justice vineet kothari reportable.....
Judgment:

SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 1/83 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

JUDGMENT

(i) Bhanwar Lal vs. State of Rajasthan & ors. S.B.CIVIL WRIT PETITION No.1211/2014 (ii) Rajendra Prasad Gora vs. R.P.S.C. S.B.CIVIL WRIT PETITION No.6249/2014. (iii) Tara Chand & Ors. vs. R.P.S.C. S.B.CIVIL WRIT PETITION No.6250/2014 (iv) Ravindra Mohan Sharma vs. R.P.S.C. S.B.CIVIL WRIT PETITION No.6252/2014. (v) Balwant Singh vs. R.P.S.C. S.B.CIVIL WRIT PETITION No.6253/2014. (vi) Joga Ram & Ors. vs. R.P.S.C. S.B.CIVIL WRIT PETITION No.6254/2014. (vii) Lokendra Kumar Charoria vs. State & Anr. S.B.CIVIL WRIT PETITION No.6255/2014. DATE OF

JUDGMENT

:

26. h November, 2014 PRESENT HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.Sanjeev Prakash Sharma, Senior Advocate with Mr. Gaurav Sharma, ]. Mr.A.K.Choudhary, ]. for the petitioners. Mr.Mahaveer Pareek ]. Mr. N.L.Verma ]. Mr. J.P.Joshi, Sr. Advocate with Mr. Siddharth Joshi, ]. Mr. Khet Singh, ]. for the respondent RPSC Dr. A.A.Bhansali, ]. Mr. H.S.Choudhary ]. for the respondents. Mr. Mukesh Rajpurohit, ]. Mr. Sushil Kumar Bishnoi ]. for the applicants. BY THE COURT: SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 2/83 1. Whether scaling, a statistical tool for evaluation of marks, could be applied to the RAS Examination, 2012 conducted by the RPSC and if in law it could so applied, whether it was rightly applied to the said examination or not is the question which is raised before this Court in the present set of writ petitions.

2. The unsuccessful candidates, who as per the result of the said examination of 2012 declared on 27/1/2014 by RPSC before final interviews could be held, are before this Court in the present set of writ petitions in the second round & are being decided today on 26th November, which is incidentally the Law Day of our Country, as once these writ petitions were already decided by a coordinate bench of learned Single Judge of this Court on 3/3/2014 against which in an intra court appeal filed by the RPSC before the Division Bench, the Division Bench vide order dated 28/7/2014 remanded the cases back to the learned Single Judge for redeciding these writ petitions for the reasons assigned by the Division Bench in its order dated 28/7/2014 while disposing of D.B.Civil Special Appeal (Writ) No.513/2014 – Rajasthan Public Service Commission vs. Bhanwar Lal .

3. In a nutshell, the learned Single Judge had quashed the result declared by the RPSC for the said examination on 27/1/2014 holding that the scaling method could not be applied by the RPSC for evaluation of the marks of the candidates in view of the decision of Hon'ble Supreme Court in the case of Sanjay Singh vs. U.P.Public Service Commission – (2007) 3 SCC720and directed the RPSC SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 3/83 to declare the result afresh on the basis of raw or actual marks obtained by the candidates and not the scaled marks and the learned Single Judge also held that the increased vacancies communicated to the Commission by the State Government vide its communication dated 11/10/2012 shall not be included in the present selection, since before the said communication, an amendment was made in the relevant Rules of 1999 vide Notification dated 31/7/2012 and, therefore, such additional vacancies could be filled-in only as per the amended Rules and not as per the unamended rules operating prior to such amendment dated 31/7/2012.

4. The Division Bench of this Court while allowing the intra court appeal, however, held that the judgment of Hon'ble Supreme Court in the case of Sanjay Singh (supra) did not completely ban the application of scaling method for evaluation of the marks and though such method could be applied in certain situations, the same was fraught with certain pitfalls or discrepancies and since these pitfalls were not examined by the learned Single Judge earlier, therefore, the case deserved to be remanded and the Division Bench following the previous Division Bench judgment of this Court in the case of Jai Singh & Ors. vs. State of Rajasthan - 2011 (2) WLC Raj. 46, in which earlier Division Bench of this Court was concerned with the RAS Examinations of 2007, held that under the provisions of the Rajasthan State & Subordinate Services ( Direct Recruitment by Combined Competitive Examination) Rules 1999 (for short, the Rules of 1999), in which the application of scaling method to the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 4/83 preliminary examination of the said examination of 2007 was under challenge, held that it could be so applied and, therefore, while remanding the case, the Division Bench in its order dated 28/7/2014 heavily relied upon the previous decision of the Division Bench in the case of Jai Singh's case (supra).

5. The scheme of examination under 1999 Rules for the said RAS/RTS examination 2012 provides for holding of examination in three phases; (i) the preliminary examination – in which objective type questions are put and scaling method is applied for scaling of the marks, (ii) the eligible candidates, who have qualified the preliminary examination are allowed to appear in the main examination and (iii) in proportion of the number of vacancies notified, usually three times of the number of vacancies, the candidates, who have cleared the main examination, are called for interview for which separate marks are allocated and after combining the marks of the main examination and interview, a common merit list is prepared for making recommendations to the State Government for appointments in the various cadres of RAS and subordinate Services like RTS etc.

6. Since this is the second round of decision on the same set of writ petitions, this Court has the benefit of the views of three Hon'ble Judges of this Court, one is of the learned Single Judge while earlier allowing the writ petitions and two on the Division Bench of this Court and various judicial precedents are also available in abundance on SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 5/83 the issue of justification, meaning and suitability of the scaling method for evaluation of the marks in such competitive examinations for administrative and judicial services conducted by the State Commissions, the constitutional bodies constituted under Article 315 of the Constitution of India, who in law are expected to conduct such examinations in a transparent, fair & objective yet secret manner so that the best merit or talent of the candidates can be tested and those who are most suited for the job can be appointed on such positions.

7. The scaling method, which also has a cousin method known as moderation method are essentially the statistical tools which after thorough examination or assessment of the requirements giving rise to the requirement to adopt such techniques for moderated evaluation of the actual or raw marks obtained by the candidates in such examination and this is done to give a plus or minus effect to the actual marks so that the `examiners variability' on the one side and `different subjects variability' on the other side can be moderated, since the candidates appearing in different subjects who are subjected to examination by different examiners and they are sought to be brought on a common scale by either artificially increasing their marks or bringing down their actual marks by adopting the specific technique or methods. Since essentially the actual or raw marks obtained by the candidates as given by the examiners on the answer sheets are definitely changed or altered by adoption of these techniques, such altered marks are essentially SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 6/83 `artificial' and not the `real' marks, which in the opinion of the examiner concerned, a candidate in question was entitled to get on the basis of the worth of the answers given by him to the various questions put in the question paper. But, such moderation and scaling methods have been considered as valid for being adopted for evaluation of the answer sheets of various candidates in these types of examinations and on several occasions the courts of the country including the Apex Court had the occasion to deal with the justification and suitability of these methods to be adopted for evaluation of marks. Undoubtedly the recent judgment in the case of Sanjay Singh's case (supra) is the detailed, comprehensive and authoritative pronouncement on this aspect of the matter and the said judgment would naturally require a profuse reproduction here again to understand the controversy in a more comprehensive manner and to test the validity of the results declared by RPSC.

8. Before coming to the contentions raised before this Court in the lengthy arguments addressed by both the sides and the series of precedents cited, a word about difference between the moderation technique and scaling method is considered opportune.

9. The moderation technique is applied by the examining body to achieve uniformity in standards of evaluation of descriptive answer books where number of examiners are more than one and to reduce the `examiner variability' and to achieve a more equitable treatment to all the candidates, so that subjective variability of the examiners SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 7/83 can be reduced and the candidates are evaluated on a common scale and, therefore, the moderation technique is applied to actual and raw marks obtained by the candidates at the hands of individual examiners.

10. On the other hand, the scaling method is devised and applied to reduce the gap of marks depending on the type of subjects in optional papers which the candidates are allowed to take as per the scheme of the examination and to provide a common scale to adjudge the candidates, who have opted subjects like mathematics on the one hand, in which naturally the chances of getting more marks depending upon the accuracy of the answers is more and on the other hand in subjects like philosophy and English Literature on the other extreme, where evaluation of answers would much depend upon the subjective satisfaction of the examiners or the experts of those subjects and not all that high marks like in Mathematics can be secured in these subjects and naturally both cannot be at the same level and, therefore, to reduce this difference on account of very difference in the nature of subjects, the scaling method is applied to provide a sort of common scale to the candidates opting for these two or more kinds of extreme subjects. The scaling method, as per the experts in the subject, has various facets and various methods of scaling and they can be applied like standard score method, linear standard score method, normalized equipercentile method are some of the recognized methods of scaling. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 8/83 11. It may be categorically and clearly understood as explained by the Hon'ble Supreme Court in the case of Sanjay Singh's case (supra) that these two techniques; moderation and scaling, operate in different fields and for different purposes. Moderation is applied to moderate the effect of `examiner variability', whereas, scaling of marks is applied to scale or modify the actual marks to reduce the effect of such variability of different subjects which are involved in the particular examination but a common merit list is required to be prepared for all the candidates and thus to provide a sort of equality to the candidates appearing in different extremes of subjects in the wide variety of options given to them in the matter of choice of the optional subjects, the scaling method can be applied by the examining body and neither the two methods of moderation & scaling are interchangeable or mixed, nor can they be confused and replaced by one another to be applied in the specified circumstances. Another word of caution which has been given by the experts and also by the Hon'ble Supreme Court is that these methods should be applied only after a thorough research and assessment of the requirement and need of applying these methods and only if the experts find that applying of these methods is necessary to avoid the extreme variability in the two aforesaid specified fields viz; `examiner variability' and `subject variability' then and then only these methods can be adopted and applied, otherwise not. A casual or a half hearted application of these methods to the actual and raw marks obtained by the candidates without properly assessing the justification of the same can bring about disastrous & SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 9/83 absurd results. The scaled or moderated marks can be far away and widely different from the actual or raw marks of the candidates awarded by the examiners concerned and that may change the entire fate of the candidates and it actually so happened in the present examination and evaluation process and one such glaring case which was emphasized by the learned counsels for the petitioners is that a candidate, who obtained 47 marks in the subject of Geography, has been scaled down to `0' mark and, thus, declared failed. There being no cap or limitation provided either in law or in the judgments on the range of scaling the marks so as to be different from the actual or raw marks, it so happened not in one case but various such examples were noticed by this Court in the earlier round of litigation and in the course of arguments advanced by the learned counsel for the petitioner even now. If this kind of effect could be the fate of applying the moderation and scaling methods and if the experts so feel the necessity thereof, once they come to the conclusion after examining the relevant material including the sampling of answer books, their re-evaluation by other examiners etc. & the raw marks given by the examiners in various subjects, which is the condition precedent for taking a decision by the examining body to apply these methods to the actual or raw marks obtained by the candidates, then all the more it is a very serious matter, for deciding whether the scaling method can be permitted by the courts of law, if a rigorous exercise has not been undertaken by the examining body before arriving at a decision to invoke and apply these methods and where these variabilities of SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 10/83 marks on account of `examiner variability' and `subject variability' has given rise to the cases of wide differences of marks with the application of moderation and scaling of marks, whether these methods can be considered necessary and justified to provide some sort of equality and relief to the candidates from the difference which arose on account of `examiner variability' and `subject variability', since they have to be adjudged suitable on a common scale and a common merit list is required to be prepared.

12. In this perspective, this Court will have to examine as to whether applying scaling or moderation technique of marks in the present RAS examination of 2012 was rightly so applied by the RPSC or it suffered from various pitfalls and whether such techniques could at all be applied to this examination or not and if permitted to do so, can the scaling or moderation be allowed to operate to bring the scaled marks at a widely different level from the actual or the raw marks or there has to be some cap or limitation on such slide down or slide up of the raw or actual marks, if the technique of scaling or moderation is legally held permissible to be applied, once the court is satisfied that examining body had undertaken the preliminary requisite exercise to justifiably arrive at a conclusion that such technique could be so applied in the facts and circumstances of present examination of RAS/RTS, 2012.

13. At this stage, a look at the relevant Rules of 1999 providing for the scheme of the said examination in Schedule III framed under SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 11/83 Rule 6 of the said Rules of 1999, which provides for Syllabus for the said examination is necessary. Schedule III of the said Rules of 1999 provides for the the competitive examination to be held in two stages; (i) Preliminary Examination and (ii) Main Examination. The Preliminary Examination consists of two papers i.e. (i) Compulsory paper and (ii) Optional paper which will be of objective type and carry a maximum of 400 marks in the subjects mentioned in Section `A' and `B'. The preliminary examination is treated to serve only as a screening test and the marks obtained in the preliminary examination by the candidates, who are declared qualified for admission to the Main Examination, will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times of the total approximate number of vacancies (categorywise) to be filled in the year in the various services and posts, but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commissioner for any lower range will be admitted to the Main Examination. Section A of the Schedule III provides for compulsory paper of General Knowledge and General Science with two hours duration and 200 maximum marks, whereas, Section B provides a list of 22 optional papers out of which a candidate has to opt for two optional papers and that also carries 200 marks and is of two hours duration. The list of 22 subjects are as under:- 1. Agriculture 2. Animal Husbandry & Veterinary Science 3. Botany 4. Chemistry 5. Civil Engineering 6. Commerce SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 12/83 7. Economics 8. Electrical Engineering 9. Geography 10. Geology 11. Indian History 12. Law 13. Mathematics 14. Mechanical Engineering 15. Philosophy 16. Physics 17. Political Science 18. Psychology 19. Public Administration 20. Sociology 21. Statistics 22. Zoology. Those who qualify for the Main Examination have to appear in four compulsory papers and two optional papers from the list given in Section B. The details of the compulsory papers, their maximum marks 100 as given in the Section B are reproduced hereunder for ready reference:- Compulsory Papers Maximum Marks Paper I General Knowledge & 100 General Science Paper II General Knowledge of Rajasthan, 100 Rajasthani Society, Art & Culture Paper III General Hindi 100 Paper IV General English 100 Optional Papers Maximum Papers Paper V Any two subjects to be opted 200 marks Paper VI by a candidate from the following for each paper. Paper VII list of optional subjects. Each subject Paper VIII will have two papers. List of Optional subjects:

1. Agriculture 2. Animal Husbandry & Veterinary Science 3. Botany SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 13/83 4. Chemistry 5. Civil Engineering 6. Commerce & Accountany 7. Economics 8. Electrical Engineering 9. Geography 10. Geology 11. History 12. Law 13. Management 14. Mathematics 15. Mechanical Engineering 16. Philosophy 17. Physics 18. Political Science & International Relations 19. Psychology 20. Public Administration 21. Sociology 22. Statistics 23. Zoology 24. Literature of one of the following: English Hindi Urdu Sanskrit Sindhi Note: A candidate shall not be allowed to offer the following combinations of subject:- (a) Political Science & International Relations and Public Administration (b) Commerce & Accountancy and Management (c ) Mathematics and Statistics (d) Agriculture and Animal Husbandry & Veterinary Science (e) Management and Public Administration (f) Of the Engineering subjects viz: Civil Engineering, Electrical Engineering and Mechanical Engineering, not more than one subject.

14. Then the stage of personality and viva-voce Examination under Rule 15 of the Rules of 1999 comes and Rule 15 is also quoted below for ready reference along with the relevant portion of SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 14/83 Schedule III:-

“15. Scheme of Examination, Personality and Viva- Voce Test:- The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-III. The marks obtained in the Preliminary Examination by the candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (categorywise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination. Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service candidates having `C' Certificate of N.C.C. will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate: Provided that the commission, on intimation being received from the Government before declaration of the result of the Preliminary Examination, may increase or decrease the number of vacancies advertised. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 15/83 (2) Personality and viva-voce Examination:- (i) Candidates who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview for a personality test which carries 160 marks. It is obligatory for a candidate to appear in the compulsory papers. (ii) The Commission shall award marks to each candidate interviewed by them. In interviewing the candidates besides awarding marks in respect of character, personality, address, physique marks shall also be awarded for the candidate's knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service, candidates having `C' Certificate of N.C.C. shall be given preference. The marks so awarded shall be added to the marks obtained in the written test by each such candidate.

3. Standard of the papers and General Instructions:- (i) The standard of the compulsory papers on General Hindi & General English will be that of Senior Secondary level and the standard of the optional papers will be that of a Bachelor's Degree level. (ii) All papers except Language and Literature papers unless specifically required, shall be answered either in Hindi or in English, but no candidate shall be permitted to answer anyone paper partly in Hindi and partly in English unless specifically allowed to do so. In papers on Sanskrit, Urdu and Sindhi Literature, the questions will be answered in the respective script of the Literature, except only when answers are specifically required to be given in Hindi or in English, as the case SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 16/83 may be. (iii) If a candidate's handwriting is not easily legible, a deduction will be made on this account from the total marks otherwise accruing to him. (iv) Credit will be given for orderly, effective and exact expression combined with due economy of words in all subjects of the examination. (4) Syllabus and scope of papers:- The syllabus and scope of each paper for the examination will be as prescribed by the Commission from time to time and will be intimated to the candidates within the stipulated time in the manner as the Commission deems fit.”. 15. Learned counsels for the petitioners also vehemently argued that the said Schedule III has been completely substituted by a new Schedule vide amendment Notification dated 31/7/2012 No.F.1(2) DOP/A-II/97, Pt., dt.31/7/2012, G.S.R. 40-Raj. Gaz.,Exty.,Pt. 4(C) (I), dt.1.8.2012, pp. 69(3) to 69 (5) = 2013 RSCS/II/P.50;H:28. The said amendment framed in pursuance of the proviso to Article 309 of the Constitution of India and promulgated by the Governor of Rajasthan are known as `The Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) (Amendment) Rules, 2012' and were intended to come into force with immediate effect and replaced Schedule III under Rule 6 completely and the Section B of the earlier Schedule III providing for optional subjects was completely done away and the main examination with compulsory papers only has been retained and the amendment would show that the said amendment was brought into SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 17/83 effect mainly to do away with the applicability of the scaling method to the optional papers in the said examination conducted under the Rules of 1999. It would be relevant to quote the said Notification dated 31/7/2012 itself for ready reference to understand the effect and purport of the said amendment:-

“28. The Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) (Amendment) Rules, 2012 – Schedule III to the principal Rules, 1999 – Substituted. G.S.R.40 – In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following rules further to amend the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999, namely:- 1. Short title and commencement. - (1) These Rules may be called the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) (Amendment) Rules, 2012. (2) They shall be come into force with immediate effect.

2. Amendment of Schedule III.- The existing Schedule III appended to the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 shall be substituted by the following, namely:- “SCHEDULE III (see Rule

6) Scheme of examination for State (R.A.S. Etc.) and Subordinate (R.T.S.etc.) Services Combined Competitive Examination. (1) Scheme of Examination.- The combined Competitive SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 18/83 Examination will be held in two successive stages- (i) Preliminary Examination, and (ii) Main Examination. (i) Preliminary Examination.- The Preliminary Examination will consist of one paper on the subject specified below, which will be of objective type and carry a maximum of 200 marks. The examination is meant to serve as a screening test only. The standard of the paper will be that of a Bachelor's Degree Level. The marks obtained in the Preliminary Examination by the candidates, who are declared qualified for admission to Main Examination will not be counted for determining their final order of merit. Subject Maximum Marks Time General Knowledge & General Science 200 Three hours (ii) Main Examination.- (a) The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (categorywise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for any lower range will be admitted to the Main Examination. (b) The written examination will consist of the following four papes which will be descriptive/analytical. A candidate must take all the papers listed below which will also consist of question paper of brief, medium, long answer and descriptive type questions. The standard of General Hindi and General English will be that of Sr. Secondary level. The time allowed for each paper shall be 3 hours. Papers Maximum Marks Paper I General Studies – I200Paper II General Studies – II200SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 19/83 Papers Maximum Marks Paper III General Studies – III200Paper IV General Hindi and General English 200 (2) Personality and viva-voce Examination (see Rule 15):- (i) Candidates who obtain such minimum qualifying marks in the written test of the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview for a personality test which carries 100 marks. (ii) The Commission shall award marks to each candidate interviewed by them. In interviewing the candidates besides awarding marks in respect of character, personality, address, physique, marks shall also be awarded for the candidate's knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service, candidates having `C' Certificate of N.C.C. shall be given preference. The marks so awarded shall be added to the marks obtained in the written test by each such candidate. (3) General Instructions: (i) All papers shall be answered either in Hindi or in English, but no candidate shall be permitted to answer any one paper partly in Hindi and partly in English unless specifically allowed to do so. (ii) If a candidate's handwriting is not easily legible, a deduction will be made on this account from the total marks otherwise accruing to him. (iii) Credit will be given for orderly, effective and exact expression combined with due economy of words in all subjects of examination. (4) Syllabus and scope of papers.- The syllabus and scope of each paper for the examination will be as prescribed by the Commission from time to time and will be intimated to the candidates within the stipulated time in the manner as the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 20/83 Commission deems fit. [Noti.No.F.1(2)DOP/A-II/97, Pt., dt.31/7/2012, G.S.R. 40-Raj. Gaz.,Exty.,Pt. 4(C) (I), dt.1.8.2012, pp. 69(3) to 69 (5) = 2013 RSCS/II/P.50;H:28.”. 16. The learned counsels for the petitioners contended before this Court that since the present examination process was initiated in pursuance of the Advertisement dated 6/2/2012 but the results were declared only on 27/1/2014 and even the main examinations were held much after the said amendment by the State Government, therefore, the RPSC could not adopt and apply the scaling method to the examinations held for the year 2012, since the very purpose of this amendment was to do away with the system of applying scaling method to the raw marks. The undisputed dates of holding the said examination of 2012 are; the preliminary examination was held on 14/6/2012, the main examination was held between 30/5/2013 to 19/6/2013. The decision to apply the scaling method to the present examination of 2012 was taken by the RPSC on 24/1/2014 and the result was declared of the main examination within three days thereafter on 27/1/2014. The learned counsels for the petitioners, therefore, contended that since the amendment had already been effected even prior to the holding of main examination & almost 11 months after the amendment which was notified on 31/7/2012, the main examinations were held, therefore, there was no justification of holding the examination under the unamended Rules and apply the scaling method, particularly when they also brought to the notice of the Court that clause 1(2) of the Advertisement dated 6/2/2012 in SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 21/83 question itself provided that the selection process for the RAS/RTS, 2012 by the combined competitive examination will be subject to the latest rules and directions of the State Government. They also submitted that clause 19 of the said Advertisement clearly stipulated that scaling method would be applied to the preliminary examination only but it was no where stipulated in the Advertisement that the scaling method would be applied to the evaluation of the marks in the main examination also. They further contended that there is no specific provision in the said Rules of 1999 also for scaling of the marks and, therefore, there is no statutory foundation available with the RPSC for applying the said scaling method to the present examination process.

17. Learned counsel Mr. S.P.Sharma, Sr. Advocate also argued that while undertaking the amendment replacing Schedule III of 1999 Rules, the RPSC was statutorily required to be consulted and its recommendation for undertaking the said examination only in the compulsory papers to avoid the application of scaling method which was required on account of wide variety of the optional subjects offered to the candidates was conveyed to the State Government way back in the year 2011 vide letter No.F.17(1)Rules/98-99/167 dated 16/3/2011 of Mr.K.K.Pathak, Secretary, RPSC conveying the concurrence to the proposed amendment to the Rules of 1999 as per the draft Notification received from the State Government and that is why the RPSC had issued the Advertisement dated 6/2/2012 for the present examination with a clear note in Clause 1 of the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 22/83 Advertisement that the examination process would be governed by the latest notified Rules by the State Government, which was so notified by replacing the Schedule III w.e.f. 31/7/2012, much prior to the holding of main examination and admittedly much prior to the results of the same which were declared on 27/1/2014, three days after the decision to invoke & apply the scaling method to these examination was taken by the RPSC on 24/1/2014.

18. Mr. S.P.Sharma, learned counsel for the petitioners, also urged that the decision to apply the scaling method to the main examination was hurriedly taken without application of mind on 24/1/2014 by the RPSC and within three days of taking the said decision, the results of the main examinations were declared on 27/1/2014. Therefore, the condition precedent of undertaking the rigorous exercise about the requirement or necessity to apply the scaling method was actually never undertaken by the RPSC and the said technique was applied even for extraneous reasons to favour some section of the candidates, who stood benefitted by application of the scaling method while more meritorious candidates suffered a setback on account of scaling down of their marks, as would be evident from the mark sheets produced before this Court in the earlier round of litigation, which fact is not even disputed by the respondent RPSC. He gave the examples of various candidates whose marks were widely different from raw marks after application of scaling and whose mark sheets have also been quoted in the judgment of learned Single Judge in the earlier judgment dated SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 23/83 3/3/2014. For example, in the case of Bhanwar Lal (Roll No.868148) he secured 113 marks in Paper – I – 36 (Sanskrit Literature) but after scaling his marks were reduced to 86, in the case of Shriram Sharma (Roll No.871045) the raw marks in paper – I-18 (History) were 98 and scaled marks went upto 120, in the case of Tara Chand Dular (Roll No.870341) raw marks in Paper – I – 34 (Hindi Literature) were 89 and after scaling the same were reduced to 64 and in Paper -II of Hindi Literature the raw marks were 75 which after scaling went down to 57. In the case of Shakti Singh Shekhawat ( Roll No.863579) the raw marks in compulsory paper of Hindi went down from 96 to 87, whereas, in optional paper of History Paper – II raw marks of 59 went up to 80 upon scaling. In the case of Munesh Kumar Meena (Roll No.841786) the raw marks of 74 in optional paper – II (History) went upto 99 and in Paper-II -15 (Geography) the raw marks of 100 were scaled down to 85. In the case of Hitesh Kumar (Roll No.866297) the raw marks in compulsory paper of General Knowledge – I went down from 46 to 42 but in General Knowledge – II even after scaling the raw marks of 34 were maintained at 34 while in optional paper the marks in Geography Paper – II were scaled down from 110 to 106 but in Paper – II of Philosophy the raw marks 88 were maintained at same level of 88 marks. The most glaring example of Ladu Ram (Roll No.832883) whose raw marks in Geography Paper-II went down from 47 to 0, while in the same subject Geography Paper – I the raw marks 36 were scaled upto 41. Thus, in two papers of Geography itself wide difference of marks is found. Likewise, in the case of Kanhaiya Lal SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 24/83 Choudhary belonging to BC Category (Roll No.863464) the marks in Philosophy Paper -II went down from 11 to 0, while in compulsory paper of General Knowledge – I went up from 20 to 29 upon scaling. The wide vagaries, differences and variations upon indiscriminate application of scaling method is, thus, writ large upon a comparative analysis of these mark sheets produced by RPSC before this Court. All the aforesaid candidates were declared not qualified for interview but if their raw marks are taken into account, the learned counsel for the petitioners contended that they could have passed and become eligible for interviews.

19. Mr. S.P.Sharma, learned counsel for the petitioners, fairly submitted that even assuming for the argument sake that scaling and moderation methods could be so adopted, then also as per the binding precedent of the Hon'ble Supreme Court in Sanjay Singh's case (supra), only the moderation of marks could be made to avoid the `examiner variability' for the compulsory papers provided in Section A of Schedule III, but the RPSC has commonly applied the scaling method even to the compulsory papers of the main examination as well as the optional papers, which is absolutely contrary to the Supreme Court decision in Sanjay Singh's case (supra) and such application of scaling method, therefore, clearly falls foul with the ratio of Supreme Court decision in Sanjay Singh's case and such results declared could not sustained. He also submitted that the non application of mind by the respondent RPSC while adopting the said technique, which would alter the actual and SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 25/83 raw marks to a great extent, was such that only 15% of the answer books were taken up by the Head Examiner and on the basis of marks variability so found by the Head Examiner, the marks were revised only for those 15% candidates, while others were so left out and in the absence of uniform application of the scaling method, very incongruous and disastrous changes in the marks were made, resulting in serious prejudice to the candidates and those who had high merit were even declared `failed' in the main examination and those who had even failed, got into the `pass' category entitling them to be called for interviews. According to the learned counsel such random picking up of 15% of answer books could also be only of choosing few candidates to give them deliberately scaled up marks for extraneous consideration. He submitted that such indiscriminate application of scaling method has completely vitiated the results of main examination of 2012 and even the various cautions for invoking and applying this method as pointed out by various authors of statistics and noticed by the Supreme Court in Sanjay Singh's case (supra) were not adhered to by the respondent RPSC. He also submitted that the number of examiners for different subjects were so different that the standard deviation and standard mean obtained in different cases on the basis of number of examiners resulted in absurd results and it was incumbent upon the RPSC to first properly evaluate the raw marks by evenly distributing the answer books to the proportionally similar number of examiners, so that the standard deviation and standard mean to be applied for the formula given for scaling could not defeat the very purpose of achieving the common SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 26/83 scale and uniformity through the application of scaling method and, thus, narrating the various pitfalls in the application of scaling method to the present examination process, he submitted that the learned Single Judge had rightly quashed the result of the 2012 examination and even after remand by the Division Bench of this Court, the same pitfalls or rather pot holes in the said evaluation technique have caused a tremendous damage to the actual and real evaluation of answer books in the present process and the results so declared by the respondent RPSC on 27/1/2014 deserve to be quashed by this Court. Though, the petitioners also prayed that entire examination so conducted stands vitiated and it should be quashed but the prayer for quashing the examination itself was not seriously pressed and only the prayer to quash the results so declared on indiscriminate application of scaling technique was vehemently pressed by the petitioners.

20. Thus, the pitfalls in the said application of scaling method to the 2012 Examination of RAS/RTS pointed out by the learned counsel for the petitioners can be summarized as under:- (i) The scaling method could not have been applied to the main examination, as there was no stipulation in this regard in the Advertisement dated 6/2/2012 nor there is any such provision in the statutory Rules of 1999. On the contrary, Clause 19 of the Advertisement dated 6/2/2012 provided for applying the scaling method only to the preliminary examination. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 27/83 (ii) Applying scaling method to the compulsory papers is absolutely illegal and contrary to the directives and binding judgment of Hon'ble Supreme Court in the case of Sanjay Singh (supra) and to balance the `examiner variability' (hawk/dove effect) of examiners in the compulsory papers, only moderation technique was approved but since that was also applied without any proper exercise undertaken for arriving at the decision for the need to invoke such method by the RPSC, even that could not have been done. (iii) The scaling method for balancing the difference in marks on account of wide variety of optional subjects also could not be applied without undertaking such pre-evaluation or assessment of the requirement to apply the said method and unless the number of examiners were evenly distributed for the answer sheets on the basis of number of candidates of such different subjects, the said method could not be applied. (iv) In the absence of uniform application of this method to all the candidates and applying it randomly to the selected 15% answer books, an apparent discrimination has been caused to those who have been left out and such a discrimination could not be sustained. (v) That on the basis of the judgment of Hon'ble Supreme Court in the case of K.Manjushree Vs.State of Andhra Pradesh & Ors. - 2008 (3) SCC512 which provided that rules of game cannot be changed in the midway or during the selection process, the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 28/83 respondent RPSC was bound by the same ratio, therefore, without any stipulation in the Advertisement & Rules of 1999 to this effect, the decision to apply the scaling method in the absence of pre notification to that effect could not be suddenly taken on 24/1/2014 and without undertaking any prerequisite assessment of the need to do so in the facts & figures available for this examination but still applying the said scaling method, the RPSC could not declare the results of main examination within three days thereof on 27/1/2014 and, therefore, it should be assumed that the scaling method was applied indiscriminately, contrary to aforesaid Supreme Court ruling & without proper application of mind, in a parrot like manner following the earlier such application in the year 2008 and 2010 and, therefore, the results so declared on 27/1/2014 deserve to be quashed. The said decision of seven members of RPSC headed by its Chairman, Mr. Habib Gauran, an IPS Officer dated 24/1/2014 as produced before this Court reads as under:- "ऐजन सख 2:-र जस न र ज एव अध नस सव ए स क पत ग (मख ) पर क , 2012 क पररण म घ ष& करन क सबध म(। आ ग द र आ जज र जस न र ज एव अध नस सव स क पत ग (मख ) पर क , 2012 क पररण म घ ष& करन क सबध म( गहन स षवच र षवमर0 कर सव0सममत स तनमन नस र तनण0 ल3 ग - (1)सकल3ग पक5 अपन ज न क समबनध म( - इस बबन8 पर षवच र षवमर0 कर सव0सममत स तनण0 ल3 ग कक षवग पर क ओ - 2008 एव 2010 क: भ त ह इस पर क म( सकल3ग पक5 अपन हए पररण म घ ष& कक ज ए।" SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 29/83 (vi) The wide difference in marks that has occurred by application of scaling method without taking requisite precautions with regard to the application of this method has resulted in complete topsy-turvy for the candidates and as per the examples given above, those who qualified on the basis of raw marks were declared to be `not qualified' and the other hand, those who could not qualify on the basis of actual or raw marks, were so declared qualified for the interview on the basis of scaled marks. (vii) That the scaling of marks could not be done for the compulsory four papers but the respondent RPSC has admitted that this was so done in the compulsory subjects also, which was completely contrary to the Supreme Court decision in the case of Sanjay Singh (supra) and the decision of this Court in the case of Sarvan Kumar vs. State – 2011 (1) RLW507 (viii) That applying the scaling method is an alternative to the method of moderation of marks vide para 27 of the Supreme Court decision in Sanjay Singh's case (supra), whereas, the RPSC has applied both moderation as well as scaling method and since both the methods cannot be applied simultaneously, the entire result of the main examination declared on 27/1/2014 stands vitiated. (ix) That the marks so given after moderation in place of raw marks were again treated as fresh raw marks by the respondent SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 30/83 RPSC while applying the scaling method, ignoring the originally secured raw marks by the candidates, which was absolutely incorrect and uncalled for and the raw marks once given by the examiner, who actually evaluated the answer books of the candidates, have to be treated as raw marks for the subsequent application of moderation technique for the compulsory papers to reduce the effect of `examiner variability' and same raw marks have to be treated as raw marks for applying scaling method in the optional subjects also to reduce the effect of `subject variability'. However, the RPSC has intermixed and inter changed the position and applied only the scaling method to both the kinds of papers; compulsory and optional and, therefore, an entirely wrong procedure has been adopted by the respondent RPSC. Thus, the scaling of marks twice over of the same candidate is a serious pitfall or pot hole in applying the scaling method indiscriminately without application of mind, rendering the results completely unsustainable. (x) The pre-requisite condition for applying the scaling method is a continuous study of data, distribution of copies in equal bundles to examiners and variation of marks of almost equal level in different subjects but since no such study was undertaken by the RPSC, the results so declared are contrary to the established practice of applying the moderation or scaling methods and the same is also contrary to the decision of Supreme Court in Sanjay Singh's case (supra). SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 31/83 (xi) That discrepancy has also occurred because candidates, who were allowed to appear in optional subjects even though they had not appeared in compulsory papers and even declared disqualified and their answer books could not have been taken into consideration for justifying the application of scaling method but the same has been done in the present case by the RPSC and, thus, the result so declared by the respondent RPSC is vitiated. Such candidates' copies were included for the purpose of counting the total number of scripts as can be seen from the Table no.2 of Annex.30. (xii) That once the amendment in Rules was effected w.e.f. 31/7/2012 itself, even the Cabinet of the State Government could not have decided for the postponement of the application of said amended Rules to the next examination of RAS/RTS to be held in the year 2013 and the RPSC was statutorily bound to hold the main examination of 2012 also in accordance with the amended Rules, which examinations were actually held in the month of May-June, 2013 and since RPSC was very well aware of this amendment process even much prior to the issuance of Advertisement prior to 6/2/2012 in the year 2011 itself and they had also clearly notified to all the candidates that the main examinations would be held and results would be declared as per the latest directions and new Rules of the State Government, there is no justification in allowing them to go back and ex-post facto seek approval of the wrong decision taken by them to apply scaling method for the examination of 2012 and even seek the Cabinet decision to postpone the application of SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 32/83 amended Rules, which was duly notified on 31/7/2012 for next examination of the year 2013 and the amendment was intended to be brought into force with immediate effect, for the next examination of the year 2013. The Cabinet decision No.3/2012 dated 4/1/2012 reads as under:- “र जस न सरक र मब<मण 3 क: आज 03/2012 द8न क 04 जनवर , 2012 क आ जज मब<मण 3 क: ब@ठक म( क लम0क (क-2) षवभ ग द र पस ज पन 5म क प.1 (2) क लम0क/क-2/97 प र0 द8न क 15 द8समबर, 2011 पर षवच र-षवमर0 कर ज पन म( अकक र जस न र ज एव अध नस सव ( (स क पत ग पर क द र स ध भ C) तन म, 1999 म( सर धन कक ज न सबध पस व पर लसद न : सहमत प8 न कर हए ह तनण0 ल3 ग कक पस षव पर क पण 3 क व&0 2013 म( आ जज ह न व 3 पत गग पर क म 3 गF कक जव इसस पव F0आ जज ह न व 3 पत ग पर क व म 0 न पचल3 पण 3 क अनस र ह आ जज क: ज व।" Sd/- (एस अहम8) मख सगचव पमख र सन सगचव, क लम0क षवभ ग -03/म.म./2012 ज पर, द8न क:

05. जनवर , 2012”.

21. Learned counsel for the petitioners, Mr. Sanjeev Prakash Sharma, Sr. Advocate also submitted that Rule 6 of the Rules of 1999 provided for the syllabus for these examinations and amendment / replacing Schedule III w.e.f. 31/7/2012 is a procedural SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 33/83 amendment and, therefore, the same was bound to be applied for the pending cases or examinations, which are yet to be held and it is well settled principle of law that the substantive law amendment are to be applied prospectively, unless specifically directed to be made retrospective in effect but since the said amendment in question w.e.f. 31/7/2012 was procedural in nature, therefore, the same would apply to the pending proceedings or examinations yet to be held after 31/7/2012 and as per various Supreme Court decisions and well settled principle of interpretation, the examinations of 2012 held in the month of May-June, 2013 were bound to be governed by the amended syllabus by the replaced Scheduled III of 1999 Rules. He brought to the notice of the Court that examination of next year of 2013 were also advertised by the respondent RPSC on 18/6/2013 as per the amended law before they took the impugned decision on 24/1/2014 to apply the scaling method to the present examination of 2012 but that examination of 2013 has also been scrapped by the RPSC itself due to paper leakage.

22. Learned counsel for the petitioners also pointed out that in the case of Jai Singh (supra) decided by the Division Bench of this Court for RAS/RTS examination 2007 delivered on 21/12/2010 the previous decision of the coordinate Division Bench of this Court in the case of Shravan Kumar (supra) decided on 10/5/2010 dealing with the RJS examination conducted by the respondent RPSC under the Rajasthan Judicial Service Rules, 1955 was not brought to the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 34/83 notice of the subsequent Division Bench and in the case of Shravan Kumar (supra) relying upon the Supreme Court decision in the case of Sanjay Singh (supra) the Division Bench of this Court held that scaling method could not be adopted and applied for the said RJS examination for the year 2008, since there was no provision in the statutory Rule 19 of the Rajasthan Judicial Service Rules, 1955 & the said Division Bench Judgment in Sharwan Kumar was upheld by Hon'ble Supreme Court with the dismissal of SLP No.16869/10 filed by RPSC on 9/7/2010 and the following observations of Division Bench Judgment in the case of Shravan Kumar (supra) were relied upon by the learned counsel for the petitioners:

“19. It is also required to be observed that in Sarita Naushad v. R.P.S.C. the matter with regard to selection in the RJS Examination 2005, in which, scaling system was adopted, was in controversy and the Division Bench of this Court while following the judgment of Sanjay Singh's case (supra) held that scaling system which is not provided in the Rules of 1955 cannot be made applicable and appointments shall be made strictly in accordance with Rules of 1955. Recently, Hon'ble apex Court has also passed order for taking into consideration the raw marks to assess the suitability of the candidates for selection in respect of RJS Examination 2005, therefore, in our opinion, there is no force in the written submissions made by the Rajasthan Public Service Commission. Hon'ble Supreme Court in Sanjay Singh's case and Division Bench of this Court in Sarita Naushad's case, have held that no SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 35/83 other procedure than the procedure prescribed in the Rules of 1955 can be made applicable by the Commission for the purpose of adjudging the suitability of the candidates for Judicial Service.

20. Upon consideration of written submissions made by learned Counsel for the RPSC, it emerges that before the Hon'ble apex Court the controversy with regard to selection of Rajasthan Judicial Service Examination 2008 is not pending because the Commission has withdrawn the SLP No.(C)-6569/2010 filed against order dated 18.02.2010. Therefore, the written submissions made by the RPSC have no force for the following reasons: (A) In Sanjay Singh's case (supra), the Hon'ble Supreme Court disapproved the 'scaling system' for recruitment to Judicial Service. (B) The Division Bench of this Court in Sarita Naushad's case (supra) quashed the scaling system adopted by the RPSC for selection in the Rajasthan Judicial Service Examination 2005. (C) The Division Bench judgment in Sarita Naushad's case was challenged by the RPSC and, now, on 05.05.2010 the Hon'ble apex Court has passed order for Sarita Naushad and other five candidates that their cases shall be considered on the basis of raw marks obtained by them; meaning thereby, even in Sarita Naushad's case Hon'ble Supreme Court gave direction that for considering her SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 36/83 candidature raw marks obtained by her shall be taken into account, therefore, again, the apex Court has disapproved the 'scaling system' adopted by the RPSC which is contrary to Rule 19 of the Rules of 1955. (D) The law laid down by the Hon'ble Supreme Court in Sanjay Singh's case (supra) is having binding force under Article 141 of the Constitution of India. Once adjudication has been made by the apex Court, then, as per law laid down in the case of Official Liquidator v. Dayanand reported in (2008) 10 SCC1we have to maintain judicial discipline. In the instant case, inspite of the fact that Hon'ble apex Court declared the 'scaling system' void, the Commission has again adopted the said procedure for selection in Rajasthan Judicial Service Examination 2008; and, at present, the question of selections of 2008 is not pending before the Hon'ble apex Court. Therefore, there is no substance in the written submissions advanced by the Commission. In this view of the matter, we are of the opinion that as per order dated 05.05.2010 passed by Hon'ble Supreme Court in Civil Appeal No.4235/2010 RPSC v. Balbir Singh Jat and Ors. with number of SLPs, the writ petitions bearing number D.B. Civil Writ Petition No.11317/2009, Devendra Singh Udawat v. State of Rajasthan and Ors. D.B. Civil Writ Petition No.10385/2009; SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 37/83 Hansraj and Anr. v. State of Rajasthan and Ors. D.B. Civil Writ Petition No.11318/2009; Bhawani Singh Bhati v. State of Rajasthan and Ors. and D.B. Civil Writ Petition No.10811/2009 Ahsan Ahmed v. State of Rajasthan and Ors. in which, selections of 2005 are under challenge shall be governed by aforesaid order dated 05.05.2010, reproduced hereinabove.

21. With regard to other writ petitions, in which, selections of Rajasthan Judicial Service Examination 2008 are under challenge, while following the adjudication made by the Hon'ble apex Court in Sanjay Singh's case as well as order dated 05.05.2010 and verdict given by the Division Bench of this Court in Sarita Naushad's case, all these writ petitions are allowed. Scaling system adopted by the Rajasthan Public Service Commission in the Rajasthan Judicial Service Examination 2008 is hereby declared illegal and unconstitutional. Consequently, the result declared on the basis of adopting the scaling system during pendency of these writ petitions for Rajasthan Judicial Service Examination 2008 and recommendations made in pursuance of result so declared to the State Government for appointment are hereby declared null and void and the Rajasthan Public Service Commission is directed to prepare fresh merit/select list while taking into consideration the raw marks obtained by the candidates in the written examination and, while proceeding on the basis of raw marks obtained by the candidates in the written examination, further, add marks obtained SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 38/83 in the interview. After preparation of fresh merit/select list, final result may be declared and names of so selected candidates may be recommended to the State Government for appointment. This exercise shall be completed by the Rajasthan Public Service Commission within a period of two months from the date of receipt of certified copy of this order.”. 23. Per contra, Mr.J.P.Joshi, Sr. Advocate appearing on behalf of the respondent RPSC vehemently opposed these writ petitions and heavily relied upon the observations made by the Division Bench in the remand order dated 28/7/2014 and the judgment in the case of Jai Singh (supra) and urged that since the application of scaling method has already been upheld by this Court, therefore, no exception to the same can be taken by the petitioners and since no bias has been established against the RPSC in applying these methods to the present examination of RAS/RTS for the year 2012, therefore, the results declared by the RPSC on 27/1/2014 are not required to be interfered with by this Court. He also submitted that the Cabinet of the State Government when took the decision No.3/2012 to make effective the amended Rules vide Notification dated 31/7/2012 only for the next year examination of 2013 and not for the present examination of RAS/RTS for the year 2012, therefore, the amended Rules or the Schedule III cannot be applied to the present examination of 2012 and since the examinations were already conducted with both the compulsory papers and optional papers as per the syllabus contained in unamended Schedule III and SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 39/83 on the date of the Advertisement dated 6/2/2012 the rules of the game could not altered during the pendency of the selection process and the RPSC was bound to hold the main examination as per the unamended Rules only. He relied upon the decision of Hon'ble Supreme Court in the cases of K.Manjusree vs. State of Andhra Pradesh – (2008) 3 SCC512and Madan Mohan Sharma & Anr. vs. State of Rajasthan &Ors. - (2008) 3 SCC724to support this contention. He also urged that whether the scaling method can be at all applied to the said examination of 2012 does not even remain the issue to be decided by this Court at this stage after the remand by the Division Bench of this Court by which the Division Bench has only directed the learned Single Judge to examine the pitfalls of the scaling method which are to be examined by this Court at this stage.

24. Mr.J.P.Joshi, Sr. Advocate heavily relied upon the decision of this Court in the case of Jai Singh & ors. vs. State of Rajasthan & Ors. - 2011 (2) WLC (Raj.) 46 (para 11), which was with regard to RAS/RTS examination for the year 2007 and the Division Bench of this Court had upheld the application of scaling method to the results declared of the said examination after taking into account the decision of Supreme Court in the case of Sanjay Singh (supra). He, therefore, submitted that this Court cannot go into that question and is bound to uphold the application of the scaling method to the present examinations of 2012.

25. Mr.J.P.Joshi, learned counsel appearing for the respondent SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 40/83 RPSC also denied the allegation of any bias or discrimination in applying the scaling method to the present examination of 2012 and justified the application of scaling method uniformly to all the candidates to undo the effect of `examiner variability' (hawk/dove effect) and `subject variability'. Relying upon the decision of Supreme Court in the case of Andhra Pradesh Public Service Commission vs. Baloji Badhavath & Ors. - (2009) 5 SCC1and Sadananda Halo & Ors. vs. Momtaz Alil Sheikh &Ors. - (2008) 4 SCC619 Mr. J.P.Joshi, Sr. Advocate submitted that hair splitting exercise cannot be undertaking by this Court while deciding the issue of justification of applying the scaling method and the RPSC being the expert body and constitutional institution entrusted with the work of holding the competitive examinations for the posts of public servants notified by the State Government and since the examinations in question have been held with complete transparency and objectivity, no such interference deserves to be made by this Court.

26. He also submitted that the scaling method has been applied to these examinations right from the year 1993 till now to the present examination of 2012 and even on some occasions the application of the scaling method was challenged by various petitioners before this Court, but the same has been upheld by this Court and, therefore, there is no occasion to deny the justification of applying the said scaling method for the evaluation of marks in the present examination of 2012. He submitted that the scaling and moderation SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 41/83 techniques are well known and proved statistical tools and methods for moderating the marks to justify the adoption of common scale and to prepare a common merit list in the face of wide variety of optional subjects and also to avoid the effect of `examiner variability' (hawk and dove effect), therefore, the question of justification of applying these methods now cannot be gone into.

27. Mr. J.P.Joshi, Sr. Advocate also justified the variance in the raw marks and the scaled marks to the extent of examples given aforesaid by the learned counsel for the petitioner on the basis of raw marks and scaled marks published by the RPSC and submitted that since there is no statutory cap or limitation on the slide on either side of the raw or actual marks given by the examiners to the candidates in first evaluation, such variance in the marks is possible. He also submitted that since the number of examiners in different subjects depended upon the availability of such expert examiners in various subjects, the RPSC had prepared a panel of such examiners of different subjects and the Head examiner, in accordance with the established practice of taking the samples of answer books randomly selected had found such difference of marks given by the various examiners, therefore, the decision taken to apply the scaling method by RPSC on 24/1/2014 on the basis of such decisions taken for the previous years, which had been upheld by the Division Bench of this Court in the case of Jai Singh (supra), the RPSC was justified in adopting the said scaling method even for the present examination of the year 2012. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 42/83 28. Referring to the additional affidavit filed by Mr. Naresh Kumar Thakral, Secretary, RPSC filed in this Court on 27/5/2014, Mr. J.P.Joshi, Sr. Advocate submitted that for the said combined competitive examination of RAS/RTS for the year 2012 in the preliminary examination held on 14/6/2012 total number of 2,25,178 candidates had appeared and the result of which examination was declared on 23/11/2012 including the enhanced posts i.e. for 1211 posts and a total number of 25,025 candidates were declared successful for the main examination and the main examinations were conducted from 30/5/2013 to 19/6/2013 and out of 25,025 candidates declared successful in the preliminary examination, a total number of 19,548 candidates appeared in the said main examination, which was taken for all four compulsory papers of General Knowledge-I, General Knowledge-II, General Hindi and General English and four papers of two optional subjects. A comparative table of subject-wise number of scripts and of examiners has also been produced in the said additional affidavit of the Secretary of the RPSC and explaining the procedure of evaluation of answer scripts of main examination, the said Secretary has also explained in para 4 and 5 of the Affidavit that upon completion of the main examination, the RPSC collected all the answer scripts, subject wise, in sealed cover from different examination centers and in the presence of Deputy Secretary, RPSC, sealed packets were opened and subject wise answer scripts were counted and tallied with the attendance number of the participant candidates. Thereafter, identify of candidates like Roll SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 43/83 No., name etc. were detached/removed from all scripts and all the scripts collected from different examination centre were thoroughly mixed up, as to avoid the one and same order of answer script relating to a particular examination centre. Thereafter, scripts were packed in packets of 100 each, subject wise, for the purpose of evaluation and to hide identity of examiners, in order to maintain integrity and fairness, a code number was allotted to each examiner.

29. That looking to the large number of scripts and availability of the examiners, to maintain integrity and fairness of examination, as well as for the security purpose of scripts and secrecy of the examiners, scripts were evaluated centrally at four different places i.e. at Ajmer and three other centers namely Jaipur, Jodhpur and Udaipur. One representative of Commission was deputed at each centre of evaluation. That to minimize the `examiner variability' and to ensure uniformity for the evaluation of the scripts, at the time of evaluation, upon 5-6 examiners (E-1), an Addl. Head Examiner (E-2) was appointed and over all one Head Examiner for each centre was appointed. Thereafter, to achieve uniformity in evaluation, a meeting of Head Examiner with all Addl. Head Examiners and Examiners was held and in pursuance of the guidelines of the RPSC, they discussed thoroughly the question paper, question-wise answer parameters and about the weightage to be given to various aspects of the answers to give marks, looking to the clarity in approach and SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 44/83 originality of the fundamental ideas, and in the light of the discussion they arrived on the norms to minimize the variation in assigning marks. In spite of the norms agreed, many examiners may tend to deviate, by their strictness or liberalness or carelessness during the courses of evaluation, therefore, to supervise and minimize such tendency, Addl. Head Examiner (E-2) made a random inspection of the answer scripts to the extent of about 15% and reevaluated them and by doing so, if marks increased or decreased, they discussed it with the respective examiner's (E-1) about the variation of the marks, to minimize the further variability in remaining answer scripts. The Head Examiner inspected the answer scripts randomly, wherein difference of more than 5% in marks awarded by E-1 and E-2 was observed and this evaluation process was adopted by the RPSC to minimize the examiner variability on the respective centres, looking into the large number of the examiners as well as the scripts. It was a pre-requisite of Scaling technique to keep the normal distribution. Examiners were directed to use Red Ink in column E-1 of the script, E-2 was directed to use Green Ink in Column E-2 and Head Examiner was directed to use Black Ink. Despite of all these efforts, `examiner variability' was widely available amongst the examiner on each center as well as amongst the four different Evaluation centres. In para 8 of the said additional affidavit of the Secretary, it is stated that to minimize the `examiner variability' as well as the `subject variability' between the heterogeneous subjects, the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 45/83 Commission decided to adopt the same scaling technique as being adopted in earlier such exams and upheld in Jai Singh's case. It is also stated that for examining four compulsory papers, more than 500 examiners were appointed to assess the copies of the candidates at four different centers, in such a situation, where large number of examiner evaluated the answer scripts related to a subject, a large number of examiner variability would be in existence, therefore examiner wise scaling technique was adopted and in optional papers, candidates adopted different 37 heterogeneous subjects and, therefore, to minimize the subject wise variability, subject wise scaling and examiner wise scaling technique was adopted. The scaling was done by adopting the following linear scaling method: S= M + (Xi- X) (e/ei) where; S= Scaled Marks M= Overall Meaning Xi = Raw Marks X= Examiner/subject Meaning e= Overall Standard Deviation ei = Examiner/subject standard Deviation It is further stated in the said additional affidavit that examiner wise scaling has not been adopted in those copies which were examined by a single examiner.

30. Mr. J.P.Joshi, Sr. Advocate, relying upon Mahesh Kumar SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 46/83 Khandelwal & Ors. vs. State of Rajasthan & Ors. - 1994 (1) RLW533 Rajasthan Public Service Commission vs. Ramesh Chandra Pilwal – 1997 (2) RLW1348and Manish Sinsinwar & Ors. vs. RPSC & anr. - DBCWP (PIL) No.368/2004 decided on 14/6/2004, in another additional affidavit dated 22/9/2014 filed in this Court, as a counter to the additional affidavit filed by the petitioner, by Mr. B.L.Khatik, Deputy Secretary, Legal Cell, RPSC, Ajmer, submitted that against the judgment of Division Bench of this Court in Jai Singh's case (supra), even though a SLP has been preferred before the Apex Court and the same is pending after its admission but no stay or interim relief has been granted to the petitioners and, therefore, the Division Bench judgment in the case of Jai Singh (supra) holds the field. It is also stated in para No.4 of the said second additional affidavit that the amendment in the Rules of 1999 cannot be construed as a disapproval of scaling method on the part of the State Government and, therefore, on the basis of said argument raised by the learned counsel for the petitioners, the application of scaling method cannot be rejected by this court. The RPSC has further stated that though the amended Rules have not been given any retrospective effect, but the State Government vide its Cabinet decision had decided to apply the said amended Rules from the next year examination of 2013, therefore, petitioners cannot derive any benefit of the said amendment to be applied to the present examination of the year 2012. In para 7 of the said additional affidavit, it is stated that the respondent Commission examined the application of scaling method and on consultation with the experts, it SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 47/83 fest advised to adopt the scaling method which it stood the test of time. The respondent RPSC also denied in para 8 the fact that reply to the writ petition filed by RPSC with the affidavit of Mr. Subroto Sanyal s/o Mr. B.K.Sanyal, who is said to have been arrested by SOG in a paper leak case against RPSC and they have controverted the stand of the petitioners in this regard and the said fact sought to be introduced by the petitioner was with a view to prejudice this Court against the RSPC. The RPSC has also stated that at no point of time the said Mr. Subroto Sanyal was arrested by the SOG and the paper leak case related to the examination of 2013 and since the charge sheet has been filed in the said case, the matter is pending before the competent court.

31. The glaring difference of marks in the case of one Ladu Ram (Roll No.832883) in Geography subject was sought to be explained by the respondent RPSC as given in para 13 of the reply filed in CW No.2056/2014 – Ravindra Mohan Sharma & Ors. vs. RPSC & ors. filed at Jaipur Bench and which cases were also transferred to Principal Seat at Jodhpur and were heard by this Court. The said reply of the respondent RPSC is quoted below for ready reference:

“13. That the contents of para 19 of the writ petition, it is submitted that every candidate has to put Examiner- wise as well as subject-wise scaling, which leads to result some time in minus, which is having rare effect of the formula. In the given case the calucation which lead to 'Zero' result, is given here as under: - SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 48/83 Geography II R.N. 832883 Raw Marks = 47 Scales = '0' M + (Xi – X) e/ei M = 79.90, Xi = 47, x = 92.38, e = 18.64, ei = 13.75 Examiner-wise = 79.90+(47-92.38) 18.64 / 13.75 = 18.38 Subjectwise = 70.15+(18.38-79) 25.9/18.64 = (-) 12.65 = '0' 14. That the evaluation is a integral part of preparation of result and it is left with the wisdom of answering respondent Commission. It is needless to submit that the answering respondent Commission has been created under the provisions of the Constitution of India and empowers to conduct the recruitment examination and also to advise the State Government in various service matters by exercising power under Article 320 of the Constitution of India.

15. It is also not necessary that marks of candidates selected have only been increased, their marks are definitely varied as per the subject mean, overall mean, number of candidates appeared etc. as per formula, which are varied from candidate to candidate. Even in a common subject the scaling formula gives different result if their examiners are different and their mean are different, as such nothing is pre-decided but calculation done by the computerize system bring the real result, as such there is no violation of Article 14 of the Constitution of India.”

. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 49/83 32. I have heard the both sides learned counsels at length and perused the record and judgments cited at the bar and the judgment of learned Single Judge earlier allowing the writ petitions and the order of remand of the Division Bench of this Court.

33. Before coming to the rival contentions, it is necessary to reproduce certain portions of the judgment of Hon'ble Supreme Court in the case of Sanjay Singh & anr. vs. U.P.Public Service Commission, Allahabad & anr. - (2007) 3 SCC720 which dealt with the controversy in a writ petition filed under Article 32 of the Constitution of India and referring to a series of earlier judgments of the Supreme Court, the said judgment pronounced upon the validity of adoption and application of scaling method to the examination for Civil Judge (Jr. Division) held by the U.P.Public Service Commission under the U.P.Judicial Service Rules, 2001 and even reconsidered the earlier decision of Supreme Court in the case of U.P. Public Service Commission vs. Subhash Chand Dixit – (2003) 12 SCC701in this regard. Overruling its previous decision in the case of Subhash Chandra Dixit (supra), the three Judges Bench in the case of Sanjay Singh (supra) held that the scaled scores are not marks awarded to a candidates in a written examination, but a figure arrived at for the purpose of being placed on a common scale. It can vary with reference to two arbitrarily fixed variables, namely 'Assumed Mean' and 'Assumed Standard Mean'. Thus, “Scaled scores”. or “scaled marks”. cannot be considered to be “marks awarded to a candidate in the written examination”.. Therefore, SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 50/83 scaling violates Rule 20(3) and Note (i) of Appendix II of the U.P.Judicial Service Rules, 2001 and it also contravenes Rules 20(1) of the said Rules.

34. In para 23, the Court explained the technique of moderation to undo the effect of `examiner variability' (hawk and dove effect) in the following manner:- 23. 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 SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 51/83 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.”. 35. In para 24 of the judgment, the Court held that moderation technique is no answer where the problem is to avoid inter se merit across several subjects i.e. to take care of subject variability and in such a situation, scaling method is applied. Para 24 of the judgment is also reproduced hereunder for ready reference:-

“24. 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 SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 52/83 where candidates have the option of selecting one or few among a variety of heterogeneous subjects and the number of students taking different options also vary and it becomes necessary to prepare a common merit list in respect of such candidates. Let us assume that some candidates take Mathematics as an optional subject and some take English as the optional subject. It is well-recognised that a mark of 70 out of 100 in mathematics does not mean the same thing as 70 out of 100 in English. In English 70 out of 100 may indicate to an outstanding student whereas in Mathematics, 70 out of 100 may merely indicate an average student. Some optional subjects may be very easy, when compared to others, resulting in wide disparity in the marks secured by equally capable students. In such a situation, candidates who have opted for the easier subjects may steal an advantage over those who opted for difficult subjects. There is another possibility. The paper setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared some paper setters in other subjects who set tougher questions difficult to answer. 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 appropriate to a degree level and examiner 'B' sets a paper in Chemistry appropriate for matriculate level. In view of these peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of candidates who have opted for different subjects, can be ascertained. The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer scripts is in respect of a single subject. Moderation is no answer where the problem is to find SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 53/83 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 equipercentile method are some of the recognized methods for scaling.”. 36. In para 25 and 26, the Court explained the concept of scaling and held in para 27 that the scaling method is an alternative to moderation and both are different statistical tools. Para 25 to 27 are also quoted below for ready reference:-

“25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their publication "Research on Examinations in India" have tried to explain and define scaling. We may usefully borrow the same. A degree 'Fahrenheit' is different from a degree 'Centigrade'. Though both express temperature in degrees, the 'degree' is different for the two scales. What is 40 Degrees in Centigrade scale is 104 Degrees in Fahrenheit scale. Similarly, when marks are assigned to answer-scripts in different papers, say by Examiner 'A' in Geometry and Examiner 'B' in History, the meaning or value of the 'mark' is different. Scaling is the process which brings the mark awarded by Examiner 'A' in regard to Geometry scale and the mark awarded by Examiner 'B' in regard to History scale, to a common scale. Scaling is the exercise of putting the marks which are the results of different SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 54/83 scales adopted in different subjects by different examiners into a common scale so as to permit comparison of inter se merit. By this exercise, the raw marks awarded by the examiner in different subjects is converted to a 'score' on a common scale by applying a statistical formula. The 'raw marks' when converted to a common scale are known as the 'scaled marks'. Scaling process, whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination.

26. The Union Public Service Commission ('UPSC' for short) conducts the largest number of examinations providing choice of subjects. When assessing inter se merit, it takes recourse to scaling only in civil service preliminary examination where candidates have the choice to opt for any one paper out of 23 optional papers and where the question papers are of objective type and the answer scripts are evaluated by computerized/ scanners. In regard to compulsory papers which are of descriptive (conventional) type, valuation is done manually and scaling is not resorted to. Like UPSC, most examining authorities appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/ conventional type question papers in regard to same subject; and that scaling should be resorted only where a common merit list has to be prepared in regard to candidates who have taken examination of different subjects, in pursuance of an option given to them. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 55/83 27. But some Examining Authorities, like the Commission are of the view that scaling can be used, not only where there is a need to find a common base across different subjects (that is bringing the performance in different subjects to a common scale), but also as an alternative to moderation, to reduce examiner variability (that is where different examiners evaluate answer scripts relating to the same subject).”. 37. Explaining the formula of scaling in para 28 of the judgment, the Court also referred to various authorities and authors' commentaries on these statistical tools like; A. Edwin Harper & Vidya Sagar Misra (Research on Examinations in India), J.P.Guilford and Benjamin Fruchter (in their treatise Fundamental Statistics in Psychology and Education), V.Natarajan and K.Gunasekaran (in their treatise Scaling Techniques – What, Why and How), Kothari Report, 1976 (“Policy & Selection Methods”. published by UPSC) etc. In Para 33, the Court concluded that scaling formula does not address or rectify the effect of strictness or liberality of the examiner and scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. Para 33 of the judgment is also quoted below for ready reference:-

“33. The reason given for introducing scaling is to cure the disparity on account of strictness or liberality of the examiners. But the effect of the scaling formula adopted by Commission is to average the marks of a batch of candidates and convert the raw marks of each SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 56/83 candidate in the batch into scaled marks with reference to the average marks of the batch and the standard deviation. The scaling formula therefore, does not address or rectify the effect of strictness or liberality of the examiner. The scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations.”. 38. In para 40 of the judgment, the Court cautioned against the application of scaling method in an indiscriminate manner in following terms:-

“40. If there was proper randomization and distribution leading to equal distribution of the candidate capacity, it would have been expected that the number of selected candidates also would have been proportionate to each segment. But we find that out of 347 candidates selected, as many as 139 candidates fall in first segment alone (within Roll nos. 1 to 10000) and 208 fall in the next five segments put together. Significantly out of the top 150 selected candidates, as many as 68 candidates also fall within Roll nos. 1 to 10000. Be that as it may. V. Low raw marks were further lowered (or made into '0') and higher raw marks were further increased due to scaling.”

. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 57/83 39. The Hon'ble Supreme Court also noticed the wide range of marks which scaling can bring about in para 41 to 44 of the judgment, which are also quoted below for ready reference:-

“41. “Example : Law Paper-II. Examiner No.5 :

33. became 9; and 120 became 146 Examiner No.6 : All marks between 9 and 1 became 0; and 119 became 139 Examiner No.7 : All marks between 37 and 1 became 0; and 132 became 165 Examiner No.9 :

4. became 0; and 122 became 156 In contrast, in some cases all raw marks whether low or high, became higher. Example : Law Paper-I. Examiner No.4 :

1. became 56; and 102 became 177. Examiner No.6 :

9. became 66; and 85 became 184. Examiner No.9 :

1. became 60; and 107 became 184. Examiner No.10 :

9. became 49; and 83 became 156.

42. The petitioners have referred to certain other absurdities arising from the application of scaling, with reference to the results of 2000 examination which was the subject matter of S.C. Dixit. (For example, it was demonstrated that in some cases, the low marks awarded by liberal examiners had increased and high marks awarded by strict examiners had reduced, thereby achieving the opposite of the goal sought to be SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 58/83 achieved -- that marks given by liberal examiners should be reduced and marks given by strict examiners should be increased). We however consider it appropriate to rely only on the anomalies/absurdities demonstrable with reference to the 2003 examination which is the subject matter of these petitions, and do not propose to rely on the anomalies noticed in regard to the 2000 examination.

43. When selections are made on the basis of the marks awarded, and the inter se ranking depends on the marks awarded, treating unequals equally, or giving huge marks to candidates who have secured zero marks in some subjects make the process wholly irrational, virtually bordering on arbitrariness. It is no doubt true that such irrationality may adversely affect only those cases which are at either end of the spectrum, and if they are excluded, by and large the scaling system may be functional. But if the extreme cases are even 20 out of 5000 for each of the subjects, it becomes 100 for 5 subjects, which means that the results of as many as 100 are likely to be affected. It may be more also. In that process, at least 5% to 10% of the vacancies are likely to be filled up by less meritorious candidates. This will lead to considerable heart- burn and dissatisfaction. When the object of the selection process is to try to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 59/83 lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation.

44. The illustrations given above with reference to the 2003 examinations clearly demonstrate the arbitrariness and irrationality of scaling, particularly in cases falling at the two ends of the spectrum. We, therefore, hold that scaling system as adopted by the Commission is unsuited for the Civil Judge (Junior Division) Examination.”. 40. Then in the final analysis, the court summarized the position regarding scaling in para 45 in the following manner:-

“45. 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 SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 60/83 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).”. 41. Emphasizing the need for Commission to identify the suitable system of evaluation, if necessary by appointing a Committee of experts and till such new system is in place, the Commission may follow the moderation system set out in para 23 above with appropriate modifications, the Court held in para 46 as under:-

“46. 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.”. 42. The previous judgment in the case of Subhash Chandra Dixit was overruled in para 48 of the judgment in the following SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 61/83 terms:-

“48. S.C. Dixit, therefore, upheld scaling on two conclusions, namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability (differences due to evaluation by strict examiners and liberal examiners). As scaling was a recognized method to bring raw marks in different subjects to a common scale and as the Commission submitted that they introduced scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not be rejected at the threshold as unworkable. But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not offer a solution for examiner variability SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 62/83 arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid.”. 43. As against the aforesaid decision in Sanjay Singh's case (supra), the Division Bench judgment of this Court in the case of Jai Singh & ors. vs. State of Rajasthan & Ors. - 2011 (2) WLC (Raj.) 46, heavily relied upon by the learned counsel Mr. J.P.Joshi appearing for the RPSC while dealing with the challenge laid to the RAS/RTS examinations for the year 2007 held under the presently applicable Rules of 1999 in the case in hand, as would be clear from the discussion made in para 23 of the judgment, which is quoted for ready reference:-

“23. The Apex Court in Sanjay Singh (supra) has reiterated the same order in para 33 of the report that scaling formula is more suited and appropriate to find a common base and inter se merit, where candidates take examinations in different subjects. The Apex Court in the context of judicial service examination where there were common subjects held that scaling could not have been applied for.”. 44. The contentions of the petitioners were noticed in para 11 and 12 of the judgment as under:- SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 63/83

“11. Shri Sanjeev Prakash Sharma, Shri Ashok Gaur, Shri Rakesh Sharma and Ms. Shefali Sharma, learned Counsel appearing on behalf of the Petitioner, submitted that scaling technique was applied without any basis. Scaling could not have been resorted to in view of the decision of the Apex Court in Sanjay Singh (supra), scaling in compulsory papers could not have been resorted to as the formula has not been correctly applied. In the set of papers which could not be opted together, it was not permissible to apply scaling. The Commission had committed illegality in increasing the zone of consideration by reducing the cut-off marks for the OBC Category candidates. Certain candidates have been given higher marks in scaling as well as in the interview. It is a case where favouritism had been resorted to in order to oblige relatives and friends. Linear method of scaling has led to anomalous and absurd results. Decision in Sanjay Singh (supra) was operative when scaling has been resorted, thus scaling done in violation of the aforesaid dictum be quashed. Under the Rules of 1999, scaling is not provided. Examinerwise scaling could not have been resorted to; at the most, moderation was the solution for variation in the marks given by the examiners. The Commission erred in applying the scaling at two levels; of examiner and another subject scaling, thus twice scaling could not have been done. The formula of Natrajan has been deviated from every angle. In the case of Rajasthan Judicial Service, this Court struck down the scaling of marks which was done; the same principle is applicable with respect to the RAS examination also. Considering 74 papers in the optional subjects of 37 subjects and number of examiners engaged, scaling was not necessary in compulsory papers, examiner-wise scaling SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 64/83 could have been done. In the optional papers where there was only one examiner, examiner-wise scaling was not done.

12. Counsel further submitted that report of the experts appointed by this Court indicates that there was increase of zero marks to 50 marks and there was increase in certain cases to the maximum of 200 marks by method of scaling. The Commission illegally applied scaling where answer scripts were less than 100. The Commission could not have applied the scaling to the same subject group which could not have been opted together. It was not permissible to scale the marks of Agriculture Engineering with History by applying scaling. The Commission has appointed huge number of examiners whereas one examiner was sufficient for 300 answer scripts. This was done for treating the examiners variability in scaling for benefit of some candidates.”. 45. The decision of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) was discussed by the Division Bench of this Court in para 19 and 20 in the following manner:

“19. In Sanjay Singh (supra), the Apex Court also took note of the fact that in judicial service examination, the candidates were required to take the examination in respect of all the five compulsory subjects and the candidates did not have any option in regard to the subjects. Consequently, the Apex Court laid down that in such a situation, moderation appeared to be an ideal solution. The Apex Court at the same time SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 65/83 has laid down that there are examinations which have a competitive situation where candidates have the option of selecting one or few among a variety of heterogeneous 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. In such a situation, candidates who have opted for easier subjects may steal an advantage over those who opted for difficult subjects. The paper- setters in regard to some optional subjects may set questions which are comparatively easier to answer when compared to some paper-setters in other subjects who set tougher questions which are difficult to answer. Their Lordships have given examples vividly of variations so caused and the Apex Court ultimately observed that in view of the peculiarities, there is a need to bring the assessment or valuation to a common scale so that the inter se merit of the candidates who have opted for different subjects can be ascertained. The moderation will solve only the problem of examiner variability. Moderation is no answer where the problem is to find inter se merit across several subjects. scaling is not arbitrary in such exigencies......

20. The Apex Court in Sanjay Singh (supra) has also discussed the scaling process whereby raw marks in different subjects are adjusted to a common scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as for example, the Civil Services Examination....”. 46. The Division Bench also followed the earlier decision of SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 66/83 Hon'ble Supreme Court in the case of K.Channegowda & Ors. vs. Karnataka Public Service Commission & Ors. - (2005) 12 SCC688 in which it was laid down that scaling can be applied at certain level where variation in marks is plus or minus and plus or minus 20 or more marks as all the candidates did not get the benefit of moderation.

47. Then in para 26 to 28 following certain other judgments of this court as well as of Supreme Court, the Division Bench held as under:-

“26. In view of the decision of the Apex Court in Sanjay Singh (supra), the scaling resorted to consider the reference of the variation was appropriate so as to arrive at just result. It is not in dispute that in the RAS Examination and Subordinate Service Examination, the method of scaling had been resorted to with effect from 1993. In Mahesh Kumar Khandelwal (supra), this Court has upheld the action of the Commission in similar set of facts and the Apex court dismissed the SLP in limine.

27. In Rajasthan Public Service Commission v. Ramesh Chandra Pilwal (supra) also, this Court relying upon the decision in Mahesh Kumar Khandelwal (supra) approved the method of scaling. Thus consistently, this Court has approved the method of scaling in RAS Examination held by the Commission. Decision of this Court in Dhanpat Mali v. RPSC and Ors. alongwith other writ applications decided vide order dated SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 67/83 27.10.2009 is in respect of RJS Rules, 2005 wherein the decision of the Apex Court in Sanjay Singh (supra) is squarely attracted as the question papers were similar to all the candidates. Whereas the scaling resorted to was held to be permissible considering large number of optional subjects available in the RAS and Subordinate Service Examination in question. Ratio of the decision in Ramesh Chandra Pilwal (supra) cannot be applied in the instant case. This Court has taken note of common post and also the fact that optional subjects were not available in Rajasthan Judicial Service examination. Thus, the ratio in the aforesaid case has different field to operate.

28. The Apex Court, in Sadananda Halo and Ors. v. Momtaz Ali Sheikh and Ors., (2008) 4 SCC619 has held that validity of recruitment could not be judged on the basis of microscopic details. It was also not proper to get sample survey of successful/unsuccessful candidates done through judicial officers. The court has to decide on the basis of pleadings of the parties. A roving enquiry cannot be made by this Court.”. 48. The Division Bench, thereafter, proceeded to uphold the applicability of scaling method to the said examination of 2007 in the following manner:-

“32. There is a common formula under the linear standard method for another scaling. Thus, it cannot be said that the formula has been applied at two levels. When one formula is to be applied, it has to be applied completely and not in part. It cannot be said SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 68/83 that the Commission has modified the V. Natarajan scaling formula. Standard deviation of a subject and average standard deviation of all subjects has been worked out methodically.

33. We also do not find any merit in the submission that blank scripts were also given benefit upto 50 marks as apparent from the return filed by the Respondents. Benefit has not been given where the copies have been left blank and marks have been awarded only when questions have been attempted and such marks have been taken into consideration for working out standard deviation of a subject and average standard deviation of all subjects which is permissible. We find the submission to be futile that there were less than 100 candidates in one subject more than one examiner could not have been appointed. In our opinion, the decision of the Commission cannot be said to be mala fide for this reason. The fact remains, where there was more than one or two examiners, examiner variation has been applied where there were only one examiner mean variation has not been applied.

34. The submission raised by the counsel appearing on behalf of the Petitioners that variation has been caused in ranking of selected candidates which has produced absurd results. We have carefully gone through the formula and find that it has been uniformly applied and it cannot be said that it has produced absurd results, rather it worked out the average mean of all the subjects. Standard deviation of all the subjects to do so was necessary considering the optional subjects and papers and large number of examiners. It could not be SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 69/83 said that moderation ought to have been applied for examiners variation whereas scaling for subjects variations. In our opinion, the scaling method has rightly been applied by the Commission after obtaining experts opinion. In compulsory papers, examiner-wise scaling has been done and not subject- wise. Where there was only one examiner in optional subjects, examiner-wise scaling has not been done. It has been resorted to where there was more than one examiner in optional papers and subject-wise scaling of the optional papers has been done which is permissible.”. 49. Concluding part of the judgment is reflected in para 41, 44 and 45 of the judgment, which are also reproduced hereunder for ready reference:-

“41. For the aforesaid reasons, we hold that no illegality was committed by the Commission in applying the scaling in the Examination of RAS and Subordinate Services Examination, 2007.

44. This Court also in Bhawani Singh Kaviya (supra) has directed to redetermine the cut-off marks of general category/OBC/SC/ST. The Commission was also permitted to reduce the marks secured by the OBC Category candidates to bring it at par with the General Category candidates. Thus, the action is in accordance with the decision rendered by this Court in Bhawani Singh Kaviya (supra), which was rendered with respect to the Preliminary Examination of 2007 itself. Consequently, the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 70/83 Rajasthan Public Service Commission has not committed any illegality. The submission raised by the counsel appearing on behalf of the Petitioners is thus rejected.

45. In view of the aforesaid discussion, we are of the opinion that the scaling cannot be said to be illegal and arbitrary. The Commission has not violated the mandate of Sanjay Singh (supra). No error has been committed in reducing the cut-off marks of OBC Category candidates to bring at par with General Category candidates. No favouritism was done to any candidate and the scaling is found to have been uniformly applied to all the candidates. The Petitioners have also failed to substantiate their case that to any other candidate higher marks were awarded due to favouritism. In view of the aforesaid discussion, we have no hesitation in dismissing the writ petitions. Accordingly, the writ petitions are dismissed. Interim stay is hereby vacated. The Commission is free to proceed further in accordance with law. We leave the parties to bear their own costs incurred on the writ petitions.”. 50. On a conjoint and comprehensive reading of the judgments cited at the bar and material placed on record, this Court is of the considered opinion that per se it cannot be said that the scaling method cannot be adopted in declaring the result in the competitive examinations like RAS/RTS and, therefore, the result prepared on the basis of such application of scaling method cannot be said to be SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 71/83 void as held by the learned Single Jude while earlier allowing these writ petitions. It is true that the scaling method has to be applied with great care and caution and on the basis of a detailed analysis of the relevant data and material and evaluation of answer books by different examiners looking into the variance of marks on account of two basic factors, namely; `examiner variability' (hawk/dove effect) and `subject variability', but unless such pre-assessment into the requirement or need of applying the scaling method including the moderation technique for compulsory papers is undertaken, the said statistical tools cannot be applied arbitrarily or without due application of mind. It is undisputed that the scaled marks are different and sometimes widely different and they are not the real or raw marks given to the candidates by the examiners for the questions in the first instance, therefore, the fate of the candidates may vary altogether upon the scaled marks taken into consideration and, therefore, unless such deep scrutiny is undertaken by the examining body into the necessity of invoking and applying these statistical tools for purposely ironing out the creases and undoing the effect of imbalances of marks for a variety of reasons, these techniques cannot be invoked and applied and a great care and caution has to be adopted on the basis of continuous review and study of the relevant material while applying these methods. It is also equally true and settled that on the basis of various judgments, particularly in the case of Sanjay Singh (supra) that only moderation technique can be adopted and applied for compulsory papers to reduce the effect of `examiner variability' (hawk & dove effect) and SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 72/83 scaling method including linear method can be adopted and invoked to reduce the effect of `subject variability' and both these methods are not interchangeable and cannot be mixed.

51. In the present cases, the respondent RPSC has not produced any material before this Court at any point of time, either in the earlier round of decision before the learned Single Judge or before the Division Bench in the intra court appeal or even now while re- arguing the cases before this Court in the third round and has not produced on record, any minutes or resolution or papers to establish that they had undertaken this kind of study and exercise into the relevant material while deciding to adopt and apply the scaling method to this examination of RAS/RTS of the year 2012. The decision of the RPSC dated 24/1/2014 taken by seven members of the RPSC headed by its Chairman, is a three line cryptic order/resolution to apply this method to the marks obtained by the candidates in the examination of RAS/RTS2012at the fag end and three days thereafter itself, the result was declared on 27/1/2014 by the RPSC. Such a decision to apply scaling method to the RAS/RTS examination of 2012 could have been and should have been taken soon after the examinations were over in the month of May-June, 2013, much before preparation of mark sheets and result but there is nothing on record before this Court to show and establish that any such exercise was undertaken by the RPSC for this purpose. This Court has reasons to believe by drawing adverse inference against the RPSC that such a decision was taken on 24/1/2014 without any SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 73/83 background study into the relevant material and it was just taken because similar methods were adopted for the examinations of 2008 and 2011, referred to in the said decision of the RPSC on 24/1/2014 and immediately within three days thereafter the results were also declared by moderating and scaling the marks, which are impugned in the present set of writ petitions. Neither with the help of any pleading or document nor during the course of arguments also, any effort was made by the learned counsel for the RPSC to establish any such assessment or evaluation into the need to apply these statistical methods to the present examination of 2012 in view of wide difference of marks on account of `examiner variability' or `subject variability' and learned counsel for the respondent RPSC merely emphasized that since the application of these methods has been upheld by the Division Bench of this Court and is not completely ruled out by the judgment in the case of Sanjay Singh (supra) (para 27), therefore, this Court cannot interfere and upset the results declared on the basis of the scaled marks.

52. While making rebuttal to the various pitfalls pointed out by the learned counsel for the petitioners and as noticed above also, learned counsel for the RPSC, Mr. J.P.Joshi, Sr. Advocate merely tried to justify the application of these methods as the same is within the powers of RPSC and application of these methods in the previous examinations having been upheld by this Court in the case of Jai Singh (supra) and other previous decisions. Despite having been pointed out the necessity of preliminary study into the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 74/83 requirement for applying the scaling method as held by the Supreme Court in the case of Sanjay Singh (supra) nothing better could be yielded from the respondent RPSC by this Court except explaining the procedure adopted for evaluation of answer scripts and preparation of the result by applying the scaling method and that too by an Additional Affidavit filed at much belated stage.

53. The pitfalls pointed out by the learned counsel for the petitioners, as noticed above, are really serious discrepancies in the application of these statistical tools for artificially re-evaluating the actual or raw marks to the higher or lower scale and the justification placed for the satisfaction of the Court for the application of these methods, the Court cannot accept the stand taken by the RPSC merely because it is a constitutional body entrusted with the said job and even though a strong presumption of fairness and transparency could be drawn in its favour. The public authorities at the same time are bound to establish before the Courts when their actions are subject to scrutiny and judicial review by the courts that not only for the name sake but in reality they have maintained and followed the rules and the requirements of applying these statistical tools. But since no such effort was made nor any such document or material was placed before this Court to justify the application of scaling method for the present examination of 2012, this Court does not find any material to rebut the allegations and arguments of learned counsel for the petitioners that these methods were applied in a hot haste manner by the RPSC. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 75/83 54. While this Court is not inclined to agree with the petitioners on their contention that in view of the amendment in the Rules of 1999 w.e.f. 31/7/2012 substituting the new Schedule III, which envisages holding of examination of RAS/RTS only for the compulsory papers and doing away with the wide range of optional subjects offered to the candidates and the said examination of the year 2012 held in the month of May-June, 2013 ought to have been held in view of the amended Schedule III, this Court is of the considered opinion that holding of examinations in terms of unamended rules deserves to be saved. The reasons are two fold. Not only the Cabinet decision No.3/12 dated 4/2/2012 of the State Government is in favour of the respondent RPSC, which postponed the applicability of these amended rules for the examination of 2013 and there is no challenge laid by the petitioners to the said Cabinet decision of the State Government before this Court, but this Court is of the considered opinion that since thousands of candidates have already appeared in the main examination and are anxiously awaiting their results and huge public money has been spent for holding of such examination, therefore, no justifiable reasons is seen to quash and set aside the said examination itself nor the said prayer was strongly pressed by the learned counsel for the petitioners and, therefore, as far as examination of 2012 are concerned, there is no reason why the same should be set aside and quashed. But the manner in which the scaling & moderation methods were applied to the present examination of 2012 without any pre-requisite and mandatory study into the assessment for the need to invoke and apply these statistical SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 76/83 tools in the face of wide variance of the marks, which has resulted on account of application of these methods in the present case, this Court is of the opinion that the result so declared by the RPSC on 27/1/2014 cannot be sustained.

55. This Court is also deeply concerned to note that in the absence of any cap or limitation on either side of the scaled up or scaled down marks, the marks have varied from 47 to 0 and various other examples cited above and this has caused serious prejudice to the candidates. Those who were meritorious and were otherwise passed and entitled to be called for interview were not so called and those who had otherwise failed were scaled up and declared `pass' and were so called for the interview and if this process is allowed to continue any further, some of them could even be so offered appointment in these cadres merely on the basis of their artificial or scaled marks. This wide variance of marks has obviously occurred due to the mathematical formula and the factors taken into consideration for applying this formula was `standard deviation' and `standard mean' to determine the `examiner variability' and `subject variability' and such factors were computed on the basis of marks awarded by human beings and individuals and no sufficient reasons were explained before this Court to justify the wide difference in the number of examiners for the subjects or answer books of similar number nor sufficient reasons were explained and established before this Court to justify the arrival of standard mean in different cases of different subjects so as to justify the application of scaling method to SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 77/83 even the scales and bring a sort of uniformity. One may also feel that if the difference in the marks is not very high, why at all these methods should be applied, like a candidate appearing in Mathematics cannot obviously be compared with a candidate appearing in Philosophy and their marks are bound to be at different levels. Can the marks of these two extreme subject or should they be brought to a uniformity on a common scale, merely by applying the method of scaling which will give rise to artificial marks & that too varying them to different levels without any limit – well a point to ponder ?. The choice is already with the candidates and they can choose their optional subjects barring negative combinations of optional subjects as given in Schedule III. Likewise, the scaling method could not be applied for compulsory papers as held by the Supreme Court in Sanjay Singh case (supra) (para

27) but the same has been applied in the present case. No separate data has been produced before this Court to show that only moderation method was applied for compulsory papers to undo the effect of `examiner variability' on the one hand and to undo the effect of `subject variability' on the other hand scaling method was applied.

56. This Court cannot permit such results based on indiscriminate application of scaling method to be pushed down under the carpet, as it has serious consequences for not only public institutions entrusted with the responsible job of holding such competitive examinations for the high administrative posts in the State, who will form part of governance and backbone of the State bureaucracy and SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 78/83 executive, having large implications for the public at large, but if such public institutions are not held accountable for such unthoughtful application of statistical methods once they are subject to judicial scrutiny, it may also send a very wrong message of Courts allowing them to have a casual or lackadaisical (`Chalta Hai') attitude. When these institutions and public bodies are held answerable in courts of law, their duty and obligation is enormous and unless the courts of law can arrive at a reasonable satisfaction of their objectivity, transparency and reasonableness in holding the examinations in a fair and transparent manner in accordance with law on the basis of cogent & relevant evidence produced by them, the judicial imprimatur or seal of approval cannot be just given to them for askance and merely because in the previous examinations invoking and application of scaling method came to be upheld by this Court, like in the case of Jai Singh (supra). One cannot lose sight of the binding precedent of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) quoted above, wherein, except on the basis of strict compliance of the guidelines, factors and parameters laid down therein, the application of the scaling method was deprecated and it was held to be not applicable for the competitive examination of U.P.State Judicial Service. The said Supreme Court decision is also not distinguishable merely because it dealt with judicial services under U.P.Judicial Service Rules & 1999 Rules were applicable to Administrative posts competitive Examination of RAS/RTS in Jai Singh (supra) case. Also, in Jai Singh's case (supra) it was never held that such pre-study of relevant material should not be done. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 79/83 57. In the absence of any cogent material before this Court produced by the RPSC, this Court cannot sustain the result on the basis of arbitrary & casual application of scaling method to the present examination of RAS/RTS2012 The applicability of scaling method cannot be upheld merely because choice was available to the candidates to take up optional subjects. Such decision is fact based decision and not law or precedent to apply scaling method based decision.

58. This Court would not hold that the scaling method cannot be applied in the examination even now and if the RPSC decides to apply such scaling or moderation method to the said examination of 2012 in view of the examination held in compulsory papers as well as optional papers, it will be mandatory for them to undertake the necessary exercise as a condition precedent into the assessment of need or requirement to invoke these methods even now. Since, this Court is cautious of the fact that per se application of these techniques are not ruled out as per the cited judgments in favour of the RPSC, this Court is of the opinion that some limitation or cap deserves to be put on the variance of raw marks and scaled or moderated marks. It may also be mentioned here that in earlier round of litigation in these cases both the learned Single Judge & Division Bench had expressed their concern for the wide variance due to applicability of scaling method, but this issue was not finally determined by them. SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 80/83 59. If such decision to apply these methods is taken now, the same can be taken only after thorough study of relevant material & comparative evaluation of answer scripts and assessment of the need to apply these method is undertaken and after recording such minutes and resolution on the basis of relevant material taken into account by the Expert Committee and there should be a cap or limitation on the slide up or slide down of the marks, so that the fate of the candidates does not merely depend upon the application of statistical and mathematical formulae and the real or raw marks awarded by the examiners in the first instance are not allowed to be varied so differently that the very purpose of original evaluation of answer books is lost. This Court feels that range of 10% of the maximum marks can be set for this purpose, so that the effect of scaling or moderation cannot go beyond 10% of the maximum marks. For example, in the case of Ladu Ram, the 47 marks secured by him in Geography could not go beyond 57 on positive side and could not go down less than 37 on the negative side, even if scaling is applied to him, since the maximum marks for the said subject was 100. In other words, 10% cap is to be computed with reference to the maximum marks of the said paper and not the raw or actual marks secured by the candidates on evaluation of answer books. If the maximum marks of the paper is 200 then the range of variance in marks can be upto 20 marks on either side and if the maximum marks of a paper is 100, then the range of variance can be 10 marks. This limitation or cap is considered necessary and expedient to SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 81/83 check & restrict the wild variance of the marks and to check the effect of factors like standard deviation and standard mean, which itself depend upon the factors, which are not easily & firmly assessable.

60. In the aforesaid view of the matter, the writ petitions are disposed of with the following directions:- (i) That the examination of RAS/RTS held for 2012 in pursuance of Advertisement dated 6/2/2012 under the Rules of 1999 are saved and are not set aside. (ii) The cryptic & not well founded decision of the RPSC dated 24/1/2014 to apply the scaling method to the present examination of RAS/RTS for 2012 is quashed and set aside. (iii) The result of the said examination of 2012 declared by the RPSC on 27/1/2014 is also quashed and set aside. (iv) The said examination of the year 2012 shall be deemed to have been taken and completed now & with the stage of raw marks available, the respondent RPSC will be free to now constitute an Expert Committee of 7 or 9 members including experts in statistics & academicians with the Chairman of RPSC & undertake the requisite and mandatory study and assessment of the need and requirement to invoke and apply the scaling and moderation techniques to the SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 82/83 present RAS/RTS examination of 2012 also and the minutes and resolution and relevant material about subject wise determination of standard mean and standard deviation on the basis of which they arrive at such decision shall be maintained & preserved by them for scrutiny by the courts of law, in case any such occasion so arises. (v) In case the RPSC now decides not to invoke and apply the scaling method to the present examination of the year 2012, they will be free to immediately declare the result on the basis of raw marks already published by them. . (vi) In case the RPSC now decides after the aforesaid pre- requisite study into the requirement and need to invoke and apply these moderation method for compulsory papers & scaling method to optional subjects to this examination, then the said exercise should be undertaken and completed within the period of three months from today and, thereafter, the results may be declared & published giving both the raw marks and the moderated marks for compulsory papers and scaled marks for the optional papers in the mark sheets to be published by them for all the candidates. (vii) That in case the difference or variance of marks on account of moderation & scaling method is beyond 10% of the maximum marks in a particular paper, then such scaled or moderated marks beyond 10% of the maximum marks shall be ignored and the scaling or moderation to the extent of 10% of maximum marks for that paper SBCWP No.1211/2014 – Bhanwar Lal vs. State & ors. a/w 6 connected matters Judgment dt:26/11/2014 83/83 can only be taken into consideration and in such case, the scaled or moderated marks with 10% cap, as explained above, shall be treated as the finally awarded marks but the ignored range of marks on account of such cap or limitation need not be published and the RPSC may only maintain a record thereof.

61. With the aforesaid observations and directions, the present writ petitions are disposed of with no order as to costs. (DR.VINEET KOTHARI), J.

item no.s/80-s/86 baweja/-


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