Holding

The statistical scaling system used by the Uttar Pradesh Public Service Commission for the Civil Judge (Junior Division) examination is arbitrary, irrational and violative of the Judicial Service Rules and must be replaced by moderation prospectively, without affecting existing appointments.

Summary

The Supreme Court examined writ petitions filed by unsuccessful candidates of the 2003 Uttar Pradesh Civil Judge (Junior Division) examination, challenging the Commission's use of a statistical scaling system to adjust raw marks. The Court held that the scaling method was arbitrary, irrational, and violated Rule 20(1) and (3) and Note (i) of Appendix‑II of the Uttar Pradesh Judicial Service Rules, which require marks finally awarded to be used for merit lists. It clarified that while the ratio decidendi of an earlier decision (S.C. Dixit) can be revisited, the present case warranted a fresh examination because fundamental rights were alleged to be infringed. The Court directed that the scaling system be replaced by a moderation process prospectively, without disturbing the appointments already made. Relief was granted to petitioners whose raw marks exceeded those of the last selected candidate, allowing them to be considered for future vacancies, while others received no relief.

Issues considered

Whether the writ petitions under Article 32 are maintainable despite the earlier decision in S.C. Dixit.
Whether the use of a statistical scaling system for marking is prohibited by the Uttar Pradesh Judicial Service Rules and PSC Procedure Rules.
Whether the scaling system adopted by the Commission is arbitrary, irrational, and requires reconsideration of the earlier judgment.
Whether the selections already made based on the scaling system should be set aside or left untouched.

Legislation cited

Constitution of Indias. Article 234, s. Article 309, s. Article 32

Subjects

Scaling systemJudicial Service RulesPublic Service CommissionArticle 32MaintainabilityArbitrarinessIrrationalityModerationExaminationAppointmentFundamental rightsStatistical scalingRule 20Rule 51Article 234Article 309

Judgment

SANJAY SINGH & ANR. A
., v.
U.P. PUBLIC SERVICE COMMISSION ALLAHABAD AND ANR.

JANUARY 9, 2007

-
[Y.K. SABHARWAL, CJI, C.K. THAKKER AND
R.V. RAVEENDRAN, JJ.]

Service law-Appointment-To the post of Civil Judge (Junior
,.--t Division)-Competitive Examination for- Conducted by Public Service
Commission-Use of 'Scaling System' for marking by the Commission- c
Challenged-Earlier decision of Supreme Court upholding 'Scaling
System '-Reconsideration of the decision also sought-Held : Scaling
system is arbitrary and irrational-It is also violative of Rule 20(1) and
(3) and Note (I) of Appendix-II of Judicial Service Rules-However, the
decision will not affect selections and appointments already made as the
same was bona fide-The parties who have approached the courts whose
D
aggregate of raw marks are more than the aggregate marks of the last
y selected candidate in the respective category to be considered for
~
appointment-UP Judicial Service Rules, 2001-rr. 20(1) and (3) and
Note (1) of Appendix JI-UP State Public Service Commission (Regulation
of Procedure and Conduct of Business) Rules, 1976-r. 51-U.P. Public E
Service Commission (Regulation of Procedure and Conduct of Business)
Act, 1974 -Constitution of India, 1950-Articles 234 and 309.

Constitution ofIndia, 1950-Article 32-Writ Petition-With reference

.. ..,,
to an issue subject matter of earlier decision-Maintainability of-Held :
Maintainable-Ratio decidendi of earlier decision is open for examination
in subsequent decision-Where violations offundamental rights is alleged,
F

it cannot be held as not maintainable.

Precedent-What constitutes-Held: It is ratio decidendi and not final
order of a judgment which forms precedent. G

Interpretation of Statutes-Held : Courts will not add words to a
statute or read into the statute words not in it-In case of finding of
---;- omission of words used, it cannot make up the deficiency, if the wordings
are clear and unambiguous. H
235
236 SUPREME COURT REPORTS [2007] 1 S.C.R

A Words and Phrases:

'Judgment' 'order and 'decree '-Meaning of

'Scaling'-Meaning of

B Present Writ Petitions were filed by the appellants questioning use
of 'Scaling System' of working in the examinations conducted by U.P. ,
Public Service Commission for appointment to the posts of Civil Judge,
_,_
Junior Division. Petitioners are unsuccessful candidates. They also prayed
for reconsideration of the decision in upholding the scaling system. UP. "
c Public Service Commission v. Subhash Chandra Dixit, [2003] 12 SCC 701.

The questions consider were :

(i) Whether the writ petitions were not maintainable?

D (ii) Whether 'Scaling' of marks was contrary to or prohibited by the
relevant Rules?

(iii) Whether the 'Scaling System' adopted by the Commission was
.....,
arbitrary and irrational, and whether the decision in S.C. Dixit's case
E approving the 'Scaling System' required reconsideration?

(iv) If the statistical scaling system is found to be illegal or irrational
or unsound, whether the selections already made, which were the subject-
matter of these petitions, should be interfered with?
F
Partly allowing the petitions, the Court
y
..
HELD: 1.1. It cannot be said that a writ petition under Article 32 of
the Constitution is barred or not maintainable with reference to an issue
which is the subject-matter of an earlier decision. [Para 10] .._,
G
1.2. It is true that a judgment of this Court cannot be challenged in
a petition under Article 32. It can, however, be reviewed under Article 137
or in exceptional circumstances reconsidered in exercise of inherent
power, on a curative petition. It is equally true that a final judgment of a
High Court can be challenged only by an appeal under Articles 132 to 134
-+--
-
H
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD '237

or by obtaining 'special leave' under Article 136 and not by a petition under A
r Article 32. But that is not the issue here. (Para 8] (247-G, H, 248-A]

1.3. In the present case, the petitioners do not seek to upset the
'order' part of the judgment in S. C. Dixit 's case which decided the validity
of UP Civil Judge (Junior Division), Examination, 2000, held under the UP
Nyayik Sewa Niyamawali, 1951. The grievance of the petitioners is in B
regard to the UP Civil Judge (Junior Division) Examination, 2003, held
under the UP Judicial Service Rules 2001. They, however, contend that the
ratio decidendi of the decision in S. C. Dixit's case upholding the
/
Commission's system of scaling of marks in written examination, requires
reconsideration. Therefore, these petitions are neither for 'review' nor for c
'setting aside' or 'questioning' the decision in S.C. Dir:it's case. [Para 9)

Rupa Hurra v. Ashok Hurra, [2002] 4 SCC 388, distinguished.

1.4. In regard to decisions of civil courts in suits governed by Civil
Procedure Code or appeals therefrom, the term 'judgment' refers to the D
grounds of a decree or order, 'decree' refers to the formal expression of
an adjudication in a suit and 'order' refers to formal expression of any
y
a decision of a civil court which is not a decree. In regard to the decisions
of High Court and Supreme Court in writ jurisdiction, the term 'judgment'
is normally used to refer to the 'judgment and order', that is the grounds
for the decision and the formal expression of the decision.
E
[Para 9] [248-A, BJ

1.5. Broadly speaking, every judgment of superior courts has three
segments, namely, (i) the facts and the point at issue; (ii) the reasons for
the decision; and (iii) the final order containing the decision. The reasons F
. '-- for the decision or the ratio decidendi is not the final order containing the
decision. In fact, in a judgment of this Court, though the ratio decidendi
may point to a particular result, the decision (final order relating to reliet)
may be different and not a natural consequence of the ratio decidendi of
·' the judgment It is the ratio decidendi of a judgment and not the final order
G
in the judgment, which forms a precedent. The term 'judgment' and
'decision' are used, rather loosely, to refer to the entire judgment or the
final order or the ratio decidendi of a judgment. Where violation of a
~ fundamental right of a citizen is alleged in a petition under Article 32, it
-t cannot be dismissed, as not maintainable, merely because it seeks to
distinguish or challenge the ratio decidendi of an earlier judgment, except H
238 SUPREME COURT REPORTS '[2007] I S.C.R.

A where it is between the same parties and in respect of the same cause of
action. Where a legal issue raised in a petition under Article 32 is covered
by a decision of this Court, the Court may dismiss the petition following
the ratio decidendi of the earlier decision. Such dismissal is not on the
ground of 'maintainability' but on the ground that the issue raised is not
tenable, in view of the law laid down in the earlier decision. But if the
B court is satisfied that the issue raised in the later petition requires
consideration and in that context the earlier decision requires
re-examination, the court can certainly proceed to examine the matter (or
refer the matter to a larger Bench, ifthe earlier decision is not of a smaller
Bench). When the issue is re-examined and a view is taken different from
C the one taken earlier, a new ratio is laid down. When the ratio decidendi
of the earlier decision undergoes such change, the final order of the earlier
decision as applicable to the parties to the earlier decision, is in no way
altered or disturbed. [Para 10] [248-E, F, G, 249-A, B, C, D]

2.1. It is no doubt true that Judicial Service Rules govern the
D
recruitment to Judicial Service, having been made in exercise of power
under Article 234, in consultation with both the commission and the High
Court. It also provides what examinations _should be conducted and the ;:

maximum marks for each subject in the examination. But the Judicial
Service Rules entrust the functio~ of conducting examinations to the
E Commission. The Judicial Service Rules do not prescribe the manner and
procedure for holding the examination and valuation of answer-scripts and
award of the final marks and declaration of the results. Therefore, it is for
the Commission to regulate the manner in which it will conduct the
examination and value the answer scripts, subject, however, to the provisions
F of the Judicial Service Rules. If the Commission has made Rules to
regulate the procedure and conduct of the examination, they will naturally
apply to any examination conducted by it for recruitment to any service,
including the judicial service. But where the Judicial Service Rules
make a specific provision in regard to any aspect of examination,
such provision will prevail, and the provision of PSC Procedure Rules, to
G the extent it is inconsistent with the Judicial Service Rules, will be .,..
inapplicable. Further, if both the Rules have made provision in regard to
a particular matter, the PSC Procedure Rules will yield to the Judicial
Service Rules. [Para 17] [253-D, E, F, G]

H 2.2. The manner in which the list of candidates as per merit should
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 239

be prepared is provided both in the Judicial Service Rules and the PSC A
..... 'f
Procedure Rules. As the field is occupied by Rule 20(3) and Note (i) of
Appendix-II of Judicial Service Rules, they will prevail over the general
provision in Rule 51 of PSC Procedure Rules. [Para 181 [253-G, 254-A]

2.3. Though Judicial Service Rules refer to 'marks finally awarded',
the said Rules do not contain a provision similar to the proviso to Rule 51 B
' of PSC Procedure Rules, enabling the Commission to adopt any method,
device or formula to eliminate variation in the marks. It is not possible to
t
--
I read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note
(i) of Appendix-II of Judicial Service Rules. Courts will not add words to
a statute or read into the statute words not in it. Even if the courts come c
to the conclusion that there is any omission in the words used, it cannot
-I
make up the deficiency, where the wording as it exists is clear and
unambiguous. While the courts can adopt a construction which will carry
out the obvious intention of the legislative or rule making authority, it
cannot set at naught the legislative intent clearly expressed in a statute or
D
the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read
-\ as they are without the addition of the proviso to Rule 51 of PSC Procedure "
"' ..I
Rules. [Para 19) [254-H, 255-A, B, CJ

2.4. It cannot be said that the words "marks awarded" or "marks
obtained in the written papers" refers only to the actual marks awarded by E
the examiner. 'Valuation' is a process which does not end on marks being
awarded by an Examiner. Award of marks by the Examiner is only one stage
_, of the process of valuation. Moderation when employed by the examining
authority, becomes part of the process of valuation and the marks awarded
on moderation become the final marks of the candidate. In fact Rule 20(3) F
v specifically refers to the 'marks finally awarded to each candidate in the
written examination', thereby implying that the marks awarded by the
examiner can be altered by moderation. [Para 20) [255-G, H, 256-A]
.
- ,
2.5. Scaled scores are not marks awarded to a candidate in a written
examination, but a figure arrived at for the purpose of being placed on a G
common scale. It can vary with reference to two arbitrarily fixed variables,
namely 'Assumed Mean' and 'Assumed Standard Mean'. 'Scaled scores' or
.... 'scaled marks' cannot be considered to be 'marks awarded to a candidate
in the written examination'. Therefore, scaling violates Rule 20(3) and Note
(i) of Appendix-II of Judicial Service Rules. [Para 21) [256-B-C] H
240 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 2.6. Rule 20 of Judicial Service Rules requires the Commission to
call for interview such number of candidates, who in its opinion have
secured the minimum marks fixed by it. Because of application of scaling
system by the Commission, it has not been possible for the Commission to
fix such minimum marks either for individual subjects or for the aggregate.
In the absence of minimum marks, several candidates who secured less
B than 30% in a subject have been selected. Thus scaling system adopted by
the Commission, contravenes Rule 20(1) also. [Para 22) [256-D, E, 257-A] '·
'
State of Bihar v. Bal Mukund Sah, [2000) 4 SCC 640; Union of India
v. Hansoli Devi, [2002) 7 SCC 273; Union of India v. Deoki Nandan
c Aggarwal, [1992) Supp. 1 SCC 323, referred to.

3.1. Scaling system as adopted by the Commission is unsuited for the
Civil Judge (Junior Division) Examination. 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
D procedure adopted to reduce examiner subjectivity or variability is known
as moderation. [Paras 23 and 35) [257-F, G, 272-A]

3.2 The procedure of 'moderation' would bring in considerable
uniformity and consistency. It should be noted that absolute uniformity or
consistency in valuation is impossible to achieve where there are several
E examiners and the effort is only to achieve maximum uniformity.
[Para 23) [259-E]

3.3 ln the Judicial Service Examination, the candidates were required
to take the examination in respect of the all five subjects and the candidates
F did not have any option in regard to the subjects. In such a situation,
moderation
I
appears to be an ideal solution. But there are examinations .
which have a competitive situation where candidates have the option
of selecting one or few among a variety of heterogenous subjects and
the number of students taking different options also vary and it
becomes necessary to prepare a common merit list in respect of
G such candidates. [Para 24) [259-F-G)

3.4. Scaling places the scores from different tests or test forms on to
a common scale. There are different methods of statistical scoring. Standard
score method, linear standard score method, normalized equi-percentile
+ ;
method are some of the recognized methods for scaling. [Para 24) [259-F-G]
H
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 241

"Research on Examinations in India" by Edwin Harper Jr. & V Vidya A
Sagar Misra, referred to.

3.5. Scaling is the exercise of putting the marks which are the results·
of different scales adopted in different subjects by different examiners into
a common scale so as to permit comparison of inter se. merit. By this
exercise, the raw marks awarded by the examiner in different subjects is
B
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 C
examinations in different subjects, as, for example, the Civil Services
Examination. [Para 25] [260-G, H, 261-A, B]

3.6. 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
D
scaling formula adopted by the Commission is to average the marks of a
batch of candidates and convert the raw marks of each candidate in the
\
batch into scaled marks with reference to the average marks of the batch
and the standard deviation. The scaling formula therefore, does not address
or rectify the effect of strictness or liberality of the examiner. The scaling
formula is more suited and appropriate to find a common base and inter se E
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 F
considerations and ignores relevant considerations. [Para 32) [266-D, E, F]

3.7. There are apparent anomalies which show scaling of marks is
arbitrary. They are visible from award of high scaled marks to those who
secured zero marks, equalization of marks of persons who secured very
high marks, equalization of marks of persons who secured low marks, G
inadequate mixing of answer scripts and improper distribution of answer
scripts. Low raw marks were further lowered (or made into '0') and higher
raw marks were further increased due to scaling. [Para 33)

3.8. When selections are made on the basis of the marks awarded, and H
242 SUPREME COURT REPORTS [2007] I S.C.R.

A 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 ifthe
B 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.
C When the object of the selection proeess is to try to select the best, and
even one mark may make the difference between selection or non-selection,
the system of scaling which has the effect of either reducing or increasing
the marks in an arbitrary manner will lead to unjust results. This is in
addition to the main disadvantage that scaling does not remedy the ill-
D effects of examiner variability arising out of strictness or liberality in
valuation. [Para 34] (271-E, F, G, H]

3.9. The Court has 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. It is also concluded that there
E 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
wber~ the need is to eliminate examiner variability on account of strict/
p liberai valuation. The scaling system adopted by the Commission leads to
irrational results, and does not offer a solution for examiner variability
arising from strict/liberal examiners. The approval of the scaling system
is no longer valid. (Para 37) (274-F, G, H, 275-A)

UP. Public Service Commission v. Subhas Chandra Dixit, (2003) 12
G SCC 701, Overruled.

Kamlesh Haribhai Goradia v. Union of India 1987 (1) Guj.LR 157,
upheld by Supreme Court by order dated 11.3.1987 in SLP (C) No. 14000/
1986; MuheshKumar Khandelwal v. State of Rajasthan, [1994) 1 Raj. LR
H 533 upheld by Supreme Court by order dated 22.1.1996 in SLP(c) No.
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 243

A
-
15682-15684 of 1994 and K.Channegowda v. Karnataka Public Service
Commission, (2005] 12 SCC 688, distinguished.

3.10. There can be no doubt Courts will be slow to interfere with
matters affecting policy requiring technical expertise and leave them for
decision of experts. But manifest arbitrariness and irrationality is an
exception to the said principle. [Para 39] [275-G-H, 276-A]
B

State of UP v. Renusagar Power Co. Ltd., [1988] 4 SCC 59; Tata Iron
and Steel Co. Ltd. v. Union of India (1996] 9 SCC 709; Federation of
Railway Officers Association v. Union of India, [2003] 4 SCC 289,
distinguished. c
'Research on Examinations in India by A. Edwin Harper & Vidya
Sagar Misra; 'Fundamental Statistics in Psychology and Education' by JP.
Guilford & Benjamin Fruchter pages 476-477; 'Scaling Techniques - what,
why and how' by V Natarajan & K. Gunasekaran; The Kothari Report, D
1976 ('Policy & Selection Methods' published by UPSC, referred to.

4. It cannot be said that the petitions should be treated as being in
public interest and the entire selection process in regard to Civil Judge
(Junior Division) Examination, 2003 should be set aside. What has been
made out is certain inherent defects of a particular scaling system when E
applied to the selection process of the Civil Judges (Junior Division) where
the problem is one of examiner variability (strict/liberal examiners). Neither
ma/a fides nor any other irregularities in the process of selection is made
out. The Commission has acted bona fide in pr<>ceeding with the selection
and neither the High Court nor the State Government had any grievance F
in regard to selections. In fact, the scaling system applied had the seal of
approval of this Court in regard to the previous selection. The selected
candidates have also been appointed and functioning as Judicial Officers.
Further the scaling system adopted by the Commission has led to irrational
and arbitrary results only in cases falling at the ends of the spectrum, and
by and large did not affect the major portion of the selection. The decision G
holding that the scaling system adopted by the Commission is unsuited in
regard to Civil Judge (Junior Division) Examination and directing
moderation, will be prospective in its application and will not affect the
selections and appointments already made in pursuance of the 2003
Examination. [Para 41] [276-B, C, D, E, F] H
244 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 5. If the aggregate of raw marks in the written examination and the
marks in the interview of any petitioner is less than that of the last selected
candidate in the respective category, he will not be entitled to any relief.
Where the aggregate of raw marks in the written examination and the
interview marks of any petitioner, is more than the aggregate of the
raw marks in the written examination and interview marks of the last
B selected candidate in his category, he shall be considered for appointment
in the respective category by counting his appointment against future
vacancies. This relief will be available only to such of the petitioners who
have approached this Court and the High Court before 31st August, 2005.
[Para 42) (277-B, C, DJ
c
CIVIL ORIGINAL JURISDICTION: Writ petition (Civil) No.165 of 2005.

Under Article 32 of the Constitution of India.

WITH
D
W.P. (C) Nos. 172, 409, 466 and 467 of 2005.

P.P. Rao, Shobha Dikshit, Ejaz Maqbool, Saurabh Kirpal, M.K. Bhardwaj,
K.L. Janjani, Debasis Misra, Y.P. Singh, C. Siddharth, P. Purnima, H. Devarajan,
E P.N. Gupta, Jatin Zaveri, Shail Kumar Dwivedi, G.V. Rao, Abhishek Kumar,
Anshuman Ashok, Purushottam Tripathi, Pradeep Misra, S.W.A. Qadri (for
Mr. Kamlendra Mishra), Manoj K. Mishra, Anju, Sheela, Sanjay Visen, Amit
Yadav, Anish Kumar Gupta, Y.P. Singh, M.B. Aggarwal, for the appearing
parties and Sanjay Singh, Petitioner-in-person.
F
The Judgment of the Court was delivered by
-I

RA VEENDRAN, J. : These petitions under Article 32 of the Constitution
of India have been filed by the unsuccessful candidates who appeared in
the examinations conducted by the Uttar Pradesh Public Service Commission
G ('Commission' for short) for recruitment to the posts of Civil Judge (Junior
Division).

2. On the request of the Allahabad High Court, to conduct the
examination for filling 347 posts of Civil Judge (Junior Division), the
H Commission issued an advertisement in the Employment News dated
SANJAY SINGH"· U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 245

28.11.2003. As many as 51524 candidates appeared for the "U .P. Judicial A
Service Civil Judge, (Junior Division) Preliminary Examination, 2003"
conducted by the Commission on 21.3.2004. The preliminary examination
was of 'objective' type consisting of two papers General Knowledge and
Law. The result was declared on 30.6.2004 and 6046 candidates were
declared qualified to appear for the "U.P. Civil Judge (Junior Division)
Examination (Main), 2003" which was of 'descriptive' (conventional) type.
B
The Main examination consisted of five papers (each carrying 200 marks) -
General Knowledge, Language, Law I, II and III - and was held between 5th
and 7th October, 2004. The number of candidates who took the said
examination was 5748.
c
3. The answer scripts relating to each subject were distributed to
several examiners for valuation, as it was not possible to get the large
number evaluated by a single examiner. The number of examiners, to whom
the answer-scripts were distributed for valuation, were as follows : General
Knowledge 18, Language 14, Law-I 11, Law-II 10, and Law-Ill 14. The
marks assigned by the examiners were subjected to 'statistical scaling' and D
the results of written examination based on such scaled marks, were declared
on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005
and 26.4.2005. After such interview, the Commission declared the final
results of the examination on 1.5.2005 based on the aggregate of 'scaled
marks' in the written (Main) examination and the marks awarded in the E
interview: On the recommendations made by Commission, appointments
were made to 347 posts of Civil Judge, Junior Division.

4. The petitioners, who were unsuccessful, are aggrieved. They contend
that the statistical scaling system adopted by the Commission is illegal as
it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also F
contend that conversion of their raw marks into scaled marks, is illegal as
it was done by applying an arbitrary, irrational and inappropriate scaling
formula. It is submitted that the Commission's exercise of subjecting the
marks secured by the candidates to scaling, has resulted in meritorious
students being ignored, and less meritorious students being awarded higher G
marks and selected, thereby violating the fundamental rights of the candidates.

(4.1) W.P. [C] No.165/2005 was filed on 5.4.2005 even before the final
results were declared, praying (i) for a direction to the Commission not to
adopt the system of scaling and to declare the results of the Main
Examination on the basis of actual marks obtained by the candidates; and H
246 SUPREME COURT REPORTS [2007] 1 S.C.R.

A (ii) for a direction that the petition be heard by a Bench of three or more
Judges as the decision of a Bench of two Judges of this Court in UP. Public
Service Commission v. Subhash Chandra Dixit, [2003] 12 SCC 701 upholding
the system of scaling adopted by the Commission does not lay down the
correct law.
i

-
,

B (4.2) The other petitions were filed after declaration of the final results,
in effect, for the following reliefs : (a) for quashing the results of the U.P.
Civil Judge (Junior Division) Main Examination-2003 declared on 7.3.2005
and the final results declared on 1.5.2005 on the basis of scaled marks and
direct the Commission to declare the results on the basis of actual marks
C secured by the candidates; (b) to direct an inquiry by an independent
agency into the irregularities committed by the Commission in the said
examination; (c) for a declaration that the use of' statistical scaling' in regard
to the examinations for the subordinate judiciary is unconstitutional; and (d)
to reconsider the law laid down in Subhash Chandra Dixit (supra).

D
5. The respondents raised the threshold bar of maintainability. It is
submitted that this Court in S. C. Dixit (supra), has rejected identical
grounds of attack and upheld the statistical scaling method adopted by the
Commission in the examination conducted in 2000. It is contended that the
prayers in these petitions under Article 32, in effect, seek setting aside or
E review of the decision in S. C. Dixit, and that is impermissible. Reliance is
placed on the Constitution Bench decision of this Court in Rupa Ashok
Hurra v. Ashok Hurra, [2002] 4 SCC 388, to contend that a writ petition
under Article 32 would not lie to challenge any judgment of this Court or
that of a High Court, as superior courts are not 'State' within the meaning
F of Article 12 and their judgments cannot be termed as violative of fundamental
rights. It is also pointed out that Review Petition (Civil) No. 162/2004 and
Curative Petition No.43/2004 filed in respect of S. C. Dixit (supra) were
rejected on 04.2.2004 and 6. I 0.2004 respectively.

6. In regard to merits, the Commission contended that the 'statistical
G scaling' method adopted in regard to Civil Judge (Junior Division) Examination l
is legal, scientific and sound and its policy to apply statistical scaling to
marks of written examination, was based on experts' opinion as also the
experience gained in conducting several examinations. It is submitted that
under the proviso to Rule 50 of the U.P .Public Service Commission (Procedure
H and Conduct of Business) Rules, 1976, it is entitled to adopt any formula or
SANJAY SINGH r. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN. J.) 247

method or device to eliminate variation in marks; that it found variation in A
the marks awarded by different examiners on account of a phenomenon
known as 'examiner variability' and to eliminate it, statistical scaling was
introduced. It is further submitted that matters relating to the conduct of
Examination, evaluation of answer-scripts, application of methods to bring
in unifonnity in evaluatic,m are matters of policy involving technical and
scientific decisions based on expert opinion; that courts are not equipped
B
1· to pronounce upon such matters and, therefore, should not interfere in the
absence of manifest arbitrariness or mala tides; and that, at all events, in
the absence of an opinion by a body of experts in the field of statistics
certifying that the system of scaling adopted by the Commission is unsound
and irrational, there should be no interference. Lastly, it is submitted that if C
the court, for any reason, should hold that the existing scaling system
should be substituted, that should be done prospectively.

7. On the contentions urged, the following questions arise for our
consideration :
D
(i) Whether the writ petitions are not maintainable ?

(ii) Whether 'scaling' of marks is contrary to or prohibited by the
relevant rules ?

(iii) Whether the 'scaling system' adopted by the Commission E
is arbitrary and irrational, and whether the decision in
S. C. Dixit (supra) approving the 'scaling system' requires
reconsideration?

(iv) If the statistical scaling system is found to be illegal or
irrational or unsound, whether the selections already made, F
which are the subject-matter of these petitions, should be
interfered with?

Re : Question (i) :

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

248 SUPREME COURT REPORTS [2007] 1 S.C.R.

A by a petition under Article 32. But that is not the issue here.

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

10. The contention of Commission also overlooks the fundamental
E difference between challenge to the final order forming part of the judgment
and challenge to the ratio decide_ndi of the judgment. Broadly speaking,
every judgment of superior courts has three segments, namely, (i) the facts
and the point at issue; (ii) the reasons for the decision; and (iii) the final
order containing the decision. The reasons for the decision or the ratio
F decidendi is not the final order containing the decision. In fact, in a .. '

judgment of this Court, though the ratio decidendi may point to a particular
result, the decision (final order relating to relief) may be different and not
a natural consequence of the ratio decidendi of the judgment. This may
happen either on account of any subsequent event or the need to mould
G the relief to do complete justice in the matter. It is the ratio decidendi of
a judgment and not the final order in the judgment, which forms a precedent.
The term 'judgment' and 'decision' are used, rather loosely, to refer to the
entire judgment or the final order or the ratio decidendi of a judgment. Rupa I

Ashok Hurra (supra) is of course, an authority for the proposition that a
petition under Article 32 would not be maintainable to challenge or set aside
H
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 249

or quash the final order contained in a judgment of this Court. It does not A
r lay down a proposition that the ratio decidendi of any earlier decision
cannot be examined or differed in another case. Where violation of a
·fundamental right of a citizen is alleged in a petition under Article 32, it
cannot be dismissed, as not maintainable, merely because it seeks to
distinguish or challenge the ratio decidendi of an earlier judgment, except
where it is between the same parties and in respect of the same cause of
B
action. Where a legal issue raised in a petition under Article 32 is covered
by a decision of this Court, the Court may dismiss the petition following the
., ratio decidendi of the earlier decision. Such dismissal is not on the ground
of 'maintainability' but on the ground that the issue raised is not tenable,
in view of the law laid down in the earlier decision. But if the court is c
satisfied that the issue raised in the later petition requires consideration and
in that context the earlier decision requires re-examination, the court can
certainly proceed to examine the matter (or refer the matter to a larger Bench,
if the earlier decision is not of a smaller Bench). When the issue is re-
examined and a view is taken different from the one taken earlier, a new ratio
D
is laid down. When the ratio decidendi of the earlier decision undergoes
such change, the final order of the earlier decision as applicable to the
't parties to the earlier decision, is in no way altered or disturbed. Therefore,
"
the contention that a writ petition under Article 32 is barred or not
maintainable with reference to an issue which is the subject-matter of an
earlier decision, is rejected. E

- Re : Question (ii) :

11. Article 234 of the Constitution requires appointments to the Judicial
Service of a State (other than District Judges) to be made by the Governor F
y
of the State in accordance with the Rules made by him in that behalf, after
consultation with the State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State. The UP Judicial
Service Rules, 2001 (for short 'Judicial Service Rules') were made by the
Governor ofUttar Pradesh in exercise of powers conferred by Article 234 and
Article 309 of the Constitution, in consultation with the Commission and the G
Allahabad High Court, to regulate the recruitment and appointment to Uttar
Pradesh Judicial Service. The Judicial Service Rules replaced the 'Uttar
Pradesh Nyayik Sewa Niyamawali, 1951' which was in force earlier. The
.-\-"
Judicial Service Rules were amended by the Uttar Pradesh Judicial Service
(Amendment) Rules, 2003. H
250 SUPREME COURT REPORTS [2007] l S.C.R.

A {11. l) Rule 7 of the Judicial Service Rules provides that recruitment to
the post of Civil Judge (Junior Division) shall be by direct recruitment on
the basis of a competitive examination conducted by Commission. Part V of
the said rules lays down the procedure for recruitment to Judicial Service.
Rule 16 provides for competitive examination and Rule 19 deals with the
syllabus. The said rules are extracted below :
B
"16. Competitive Examination - The examination may be conducted
at such time and on such dates as may be notified by the
Commission and shall consist of -

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

(b) an examination to test the knowledge of the candidates in Hindi,
D English and Urdu;

(c) an interview for assessing merit of the candidate giving due
regard to his ability, character, personality, physique and genera 1
suitability for appointment to the service.

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

Appendix II to the Rules contains the syllabus for the competitive examination.
F
It enumerates the details of the five subjects for the written examination and
y
the number of marks carried by each subject (200 each). It also provides for
a Personality Test (interview) to find out the suitability of the candidates
(carrying 100 marks). Note (i) to Appendix-II provides that "the marks
obtained in the interview will be added to the marks obtained in the written
G papers and the candidate's place will depend on the aggregate of both".

12. Sub-Rule (1) of Rule 20 of the Judicial Service Rules requires the
Commission to prepare the result of the written examination and thereafter, ..
/

invite such number of candidates, who in the opinion of the commission -f.
have secured minimum marks as may be fixed. Sub-Rule (2) provides for
H
SANJAY SINGH 1·. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 251

participation of a sitting Judge in the interview of candidates. A
Sub-rule (3) provides that the Commission shall prepare a final list of
selected candidates in order of their proficiency as disclosed by aggregates
of marks finally awarded to each candidate in the written examination and
the interview. The proviso thereto provides that if two or more candidates
obtain equal marks in the aggregate, the name of the candidate who is elder
in age shall be placed higher and where two or more candidates of equal age B
obtain equal marks in the aggregate, the name of the candidate who has
obtained higher marks in the written examination shall be placed higher. Rule
21 provides that the Governor shall on receipt of the list of candidates
submitted by the Commission under Rule 20(3) make appointment on the
posts of Civil Judge (Junior Division) in the order in which their names are c
given in the list provided. Thus the Judicial Service Rules constitute a
complete code in itself in regard to recruitment to Judicial Service. It is also
evident that the marks finally awarded to each candidate in the written
examination and interview are crucial both for appointment as also for
purposes of inter se seniority.
D
13. The petitioners point out that the Judicial Service Rules do not
provide for substituting the actual marks obtained by a candidate by scaled
marks. It is contended that the words "marks obtained in the written papers"
in Note (i) of Appendix II clearly indicate that the actual mark; obtained in
the written examination alone should be taken into account and not any E
moderated or scaled marks; that in the absence of any provision for scaling
in the Judicial Service Rules, the Commission had no authority to substitute
the actual marks by 'scaled marks'; and that the places/ranks of the
candidates should be determined strictly on the basis of the aggregate of
the actual marks obtained in the main written examination plus the marks
obtained in interview. F

14. The Commission contends that the manner of conducting
examination by the Commission, even in regard to recruitment to Judicial
Service, is governed by the Uttar Pradesh Public Service Commission
(Procedure and Conduct of Business) Rules, 1976 (for short 'PSC Procedure G
Rules') made by the Commission in exercise of the power conferred by the
UP State Public Service Conunission (Regulation of Procedure and Conduct
....
of Business) Act, 1974. Rule 26 provides for preparation of a panel of
Examiners or constitution of a Committee for the purpose of holding
examination in each subject. Rule 28 provides that the question papers set
H
'(

252 SUPREME COURT REPORTS [2007] I S.C.R.

A by the examiners shall be placed before the Commission to ensure conformity
with the required standard of examination and the Commission may moderate
the question papers or constitute a Committee to perform the work of
moderation. Rule 30 provides for advertisement of vacancies for which
selections are to be made and scrutiny of applications received. Rule 33
provides for the determination of place, dates and time of examination and
B the centres for examination. Rule 34 provides for the list of persons suitable ~

to be appointed as invigilators and appointment of invigilators. Rule 37
provides for fictitious roll numbers (code numbers) to be allotted to each 1
candidate before the answer books are dispatched to the examiners for
assessment. Rule 38 provides that the number of answer books to be sent ,•
c to each examiner shall be fixed by the Commission. Rule 44 requires the
Secretary of the Commission to take steps for tabulati~n of marks obtained
by each candidate as soon as the answer-scripts are received after valuation,
after scrutiny of scripts, removal of discrepancies and corrections. Rule 45
provides for random checking of the tabulation to ensure correctness and
accuracy of tabulation. Rule 47 nrovides that the original roll numbers of
D
candidates shall thereafter be resLOred to the answer-scripts and for issue
of interview letters. Rule 49 authorizes the Commission to decide the number
of candidates to be called for interview to appear before a Board on any day.
Rule 50 provides that the interview marks awarded shall be kept in safe
custody. Rule 51 provides that mark-sheets shall be opened on the last day
E of interview and immediately thereafter the marks of interview/personality
test shall be added to the marks obtained by the candidates in the written
examination, and thereafter on the basis of the total so obtained, the merit
list shall be prepared and placed before the Commission for final declaration
of the result. The proviso to Rule 51 provides that the Commission with a
F view to eliminate variations in the raaj<s awarded to candidates at any time
at any examination or interview, adopt any method, device or formula which
tl:ey consider proper for the purpose. The Commission contends that having
regard to the proviso to Rule 51 which specifically enables them to adopt
any method, device or formula to eliminate variations in the marks awarded ...
to any at any examination, they are entitled to adopt the scaling system to
G eliminate variations in marks.

15. The petitioners point out that the P-SC Procedure Rules were not
....._
.....
made in consultation with the High Court. On the other hand, the Judicial
Service Rules, 2001 which came into effect from 1.7.2000, were made in
H consultation with both Commission and the High Court. It is, therefore,
SANJAY SINGH "· U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN, J .] 253

submitted that the Judicial Service Rules alone will regulate and govern the A
recruitment of Civil Judges (Junior Division) including examinations and
interviews and the proviso to Rule 51 of PSC Procedure Rules will not apply
to recruitment of Civil Judges. Reliance is placed on the decisions of this
Court in State ofBiharv. Bal Mukund Sah, [2000) 4 SCC 640, Union ofIndia
v. Hansoli Devi, [2002) 7 SCC 273 and Union of India v. Deoki Nandan
Aggarwal, [1992) Supp. l SCC 323 in regard to interpretation of the Rules. B

16. This question was considered briefly by this Court in S. C. Dixit
wherein it was held that the PSC Procedure Rules made in exercise of power
under the U.P. State Public Service Commission (Regulation of Procedure
and Conduct of Business) Act, 197 4 give the guidelines for any examination C
to be held by the Commission and therefore, all the provisions of the said
Rules will be applicable to an examination for recruitment to judicial service
also.

17. It is no doubt true that Judicial Service Rules govern the recruitment
to Judicial Service, having been made in exercise of power under Article 234, D
in consultation with both the commission and the High Court. It also
1 provides what examinations should be conducted and the maximum marks
for each subject in the examination. But the Judicial Service Rules entrust
the function of conducting examinations to the Commission. The Judicial
Service Rules do not prescribe the manner and procedure for holding the
examination and valuation of answer-scripts and award of the final marks
E
and declaration of the results. Therefore, it is for the Commission to regulate
the manner in which it will conduct the examination and value the answer
scripts, subject, however, to the provisions of the Judicial Service Rules. If
the Commission has made Rules to regulate the procedure and conduct of
.,. the examination, they will naturally apply to any examination conducted by F
it for recruitment to any service, including the judicial service. But where the
Judicial Service Rules make a specific provision in regard to any aspect of
examination, such provision will prevail, and the provision of PSC Procedure
~ Rules, to the extent it is inconsistent with the Judicial Service Rules, will be
inapplicable. Further, if both the Rules have made provision in regard to a
particular matter, the PSC Procedure Rules will yield to the Judicial Service
G

... ~-
Rules .

18. The manner in which the list of candidates as per merit should be
prepared is provided both in the Judicial Service Rules and the PSC
Procedure Rules. Relevant portion of Rule 20(3) and Note (i) of Appendix- H
254 SUPREME COURT REPORTS [2007] l S.C.R

A II of the Judicial Service Rules and Rule 51 of the PSC Procedure Rules
providing for the aggregation of marks and preparation of the merit list, are
extracted below :-

Judicial Service Rilles PSC Procedure Rules.

B Rule 20(3). The Commission then Rule 51. The marks-sheets so
shall prepare a final list of selected obtained shall be opened on the
candidates in order of their last day of interview and immediately
proficiency as disclosed by there after the marks of interview/
aggregate ofmarks finally awarded personality test shall be added to
to each candidate in the written the marks obtained by the
c examination and the interview. candidates in the written
examination. Thereafter, on the
Note (i) of Appendix-II. - Marks basis of the totals so obtained the
obtained in the interview will be merit list shall be prepared and
added to the marks obtained in the place before the Commission for
D written papers and the candidates ' final declaration of the result.
place will depend on the aggregate
of the both. Provided that the Commission may,
with a view to eliminating variation
in the marks awarded to candidates
at any examination or interview,
E adopt and method, device or formula
which they consider proper for the
purpose.

(different emphasis supplied)
F As the field is occupied by Rule 20(3) and Note (i) of Appendix-II of Judicial
Service Rules, they will prevail over the general provision in Rule 51 of PSC
Procedure Rules.

19. Rule 20(3) provides that the fin<\! list of selected candidates in order
..
G of their proficiency as disclosed by the aggregate of 'marks finally awarded
to each candidate in the written examination and the interview". Note (i)
to Appendix II of the Judicial Service Rules provides that the "marks
obtained in. the interview" will be added to "the marks obtained in the
written papers" and that the candidate's place will depend on the aggregate
H of both. Though Judicial Service Rules refers to 'marks finally awarded', the
SANJAY SINGH r U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN, J.] 255

-
.-! said Rules do not contain a provision similar to the proviso to Rule 51 of
PSC Procedure Rules, enabling the Commission to adopt any method, device
or formula to eliminate variation in the marks. It is not possible to read the
proviso to Rule 51 or words to that effect into Rule 20(3) or Note (i) of
A

Appendix-II of Judicial Service Rules. It is well settled that courts will not
add words to a statute or read into the statute words not in it. Even if the
courts come to the conclusion that there is any omission in the words used,
B
it cannot make up the deficiency, where the wording as it exists is clear and
unambiguous. While the courts can adopt a construction which will carry
t' out the obvious intention of the legislative or rule making authority, it
cannot set at naught the legislative intent clearly expressed in a statute or
the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read c
as they are without the addition of the proviso to Rule 51 of PSC Procedure
Rules. If so, what can be taken into account for preparing final list of
selected candidates, are 'marks finally awarded to a candidate' in the written
examination and the interview. The marks assigned by the examiner are not
necessarily the marks finally awarded to a candidate. If there is any error in
D
the marks awarded by the examiner it can always be corrected by the
'I- Commission and the corrected marks will be 'the final marks awarded to the
.,\
candidate'. Where the Commission is of the view that there is 'examiner
variability' in the marks (due to strict or liberal assessment of answer scripts)
or improper assessment on account of erratic or careless marking by an
examiner, they can be corrected appropriately by moderation. The moderation E
is either by adding (in the case of strict examiners) or deducting (in the case
of liberal examiners) a particular number of marks which has been decided
with reference to principles of moderation applied. If there is erratic or
careless marking, then moderation is by fresh valuation by another examiner.
Therefore, the marks assigned by the examiner as moderated will be the F
marks finally awarded to the candidates or marks obtained by the candidates.
Moderation, it has to be held, is inherent in the evaluation of answer scripts
in any large scale examination, where there are more than one examiner.

20. We cannot accept the contention of the petitioner that the words
"marks awarded" or "marks obtained in the written papers" refers only to G
the actual marks awarded by the examiner. 'Valuation' is a process which
does not end on marks being awarded by an Examiner. Award of marks by
~ the Examiner is only one stage of the process of valuation. Moderation when
employed by the examining authority, becomes part of the process of
valuation and the marks awarded on moderation become the final marks of H
256 SUPREME COURT REPORTS [2007] 1 S.C.R.

A the candidate. In fact Rule 20(3) specifically refers to the 'marks finally
awarded to each candidate in the written examination', thereby implying that
the marks awarded by the examiner can be altered by moderation.

21. But the question is whether the raw marks which are converted into
scaled scores on an artificial scale which assumed variables (assumed mean
B marks and assumed standard deviation) can be considered as 'marks finally
awarded' or 'marks obtained'. Scaled scores are not marks awarded to a
candidate in a written examination, but a figure arrived at for the purpose
of being placed on a common scale. It can vary with reference to two
arbitrarily fixed variables, namely 'Assumed Mean' and 'Assumed Standard
C Mean'. We have dealt with this aspect in greater detail while dealing with
question (iii). For the reasons given while considering question (iii), we hold
that 'sca'd scores' or 'scaled marks' cannot be considered to be 'marks
awarded to a candidate in the written examination'. Therefore, scaling
violates Rule 20(3) and Note (i) of Appendix-II of Judicial Service Rules.

D 22. Rule 20 of Judicial Service Rules requires the Commission to call
for interview such number of candidates, who in its opinion have secured
the minimum marks fixed by it. Because of application of scaling system by
the Commission, it has not been possible for the Commission to fix such
minimum marks either for individual subjects or for the aggregate.""In the
E absence of minimum marks, several candidates who secured less than 30%
in a subject have been selected. We note below by way of illustration, the
particulars of some candidates who have been selected in spite of securing
less than 20% in a subject :

S. No. Roll No. Subject Actual Scaled Rankin
F Marks Marks Selection
(in%)
1. 012610 Language 8% 79 225
2. 032373 Language 8% 79 290
3. 002454 Language 11% 79 1%
4. 008()<)7 Language 13% 89 85
G
5. 017808 Law-I 13% 76 317
6. 010139 Language 14% 85 333
7. 012721 Law-I 15% 100 172
8. 002831 Language 16% 89 263
9. 004998 Language 17% 91 161
H
SANJAY SINGH''· U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 257

~ Thus scaling system adopted by the Commission, contravenes Rule A
20(1) also.

Re : Question (iii)

23. When a large number of candidates appear for an examination, it
is necessary to have uniformity and consistency in valuation of the answer- B
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 c
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 D
assess the answer-scripts. Inevitably therefore, even when experienced
examiners receive equal batches of answer scripts, there is difference in
average marks and the range of marks awarded, thereby affecting the merit
of individual candidates. This apart, there is 'Hawk-Dove' effect. Some
examiners are liberal in valuation and tend to award more marks. Some
examiners are strict and tend to give less marks. Some may be moderate and
E
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 F
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 h1ter se the Examiners so G
that the effect of' examiner subjectivity' or 'examiner variability' is minimised.
The procedure adopted to reduce examiner subjectivity or variability is
known as moderation. The classic method of moderation is as follows :

(i) The paper-setter of the subject normally acts as the Head Examiner for
the subject. He is selected from amongst senior academicians/scholars/ H
258 SUPREME COURT REPORTS [2007] I S.C.R.

A senior civil servants/Judges. Where the case of a large number of
candidates. more than one examiner is appointed and each of them is
allotted around 300 answer-scripts for valuation.

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

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

(iv) After ascertaining or assessing the standards adopted by each examiner, -+.
the Head Examiner may confirm the award of marks without any change
H if the examiner has followed the agreed norms, or suggest upward or
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 259

downward moderation, the quantum of moderation varying according A
to the degree of liberality or strictness in marking. In regard to the top
level answer books revalued by the Head Examiner, his award of marks
is accepted as final. As regards the other answer books below the top
level, to achieve maximum measure of uniformity inter se the examiners,
the awards are moderated as per the recommendations made by the
Head Examiner.
B

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

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

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

24. In the Judicial Service Examination, the candidates were required to
F
take the examination in respect of the all five subjects and the candidates
did not have any option in regard to the subjects. In such a situation,
moderation appears to be an ideal solution. But there are examinations which
have a competitive situation where candidates have the option of selecting
'one or few among a variety of heterogenous subjects and the number of
students taking different options also vary and it becomes necessary to G
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 I 00
in English. In English 70 out of 100 may indicate to an outstanding student H
260 SUPREME COURT REPORTS [2007] 1 S.C.R.

A whereas in Mathematics, 70 out of l 00 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
B 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
C 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 rp.oderation 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
D
single subject. Moderation is no answer where the problem is to find inter
se merit across several subjects, that is, where candidates take examination
in different subjects. To solve the problem of inter se merit across different 1
subjects, statistical experts have evolved a method known as scaling, that
is creation of scaled score. Scaling places the scores from different tests or
E test forms on to a common scale. There are differ~nt methods of s.t~tistical
scoring. Standarq score method, linear s~andard score method, normalized
equi-percentile method are some of the recognized methods for scaling.

25. A. Edwin Harper Jr. & V Vidya Sagar Misra in their publication
F "Research on Examinations in India" have tried to explain and define scaling.
We may usefully borrow the same. A degree 'Fahrenheit' is different from y
a degree 'Centigrade'. Though both express temperature in degrees, the
'degree' is different for the two scales. What is 40 Degrees ii;i Centigrade
scale is I 04 Degrees in Fahrenheit scale. Similarly, when marks are assigned
to answer-scripts in different papers, say by Examiner 'A' in Geometry and
G Examiner 'B' in History, the meaning or value of the 'mark' is different.
Scaling is the process which brings the mark awarded by Examiner 'A' in
regard to Geometry scale and the mark awarded by Examiner 'B' in regard
to History scale, to a common scale. Scaling is the exercise of putting the
marks which are the results of different scales adopted in different subjects
H by different examiners into a common scale so as to permit comparison of
SANJAY SINGH 1•. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 261

inter se merit. By this exercise, the raw marks awarded by the examiner in A
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 B
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 C
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
objectivt. 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 D
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 E
subjects, in pursuance of an option given to them.

27. But some Examining Authorities, like the Commission are of the
view that scaling can be used, not only where there is a neeci to find a
common base across different subjects (that is bringing the performance in p
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).

28. Let us now examine the reasons as to why the Commission adopted
'scaling' instead of moderation. The Committee states that the anomalies G
caused on account of 'examiner variability' was engaging its attention. It
found that a candidate's score may depend upon the "chance' factor of
whether his answers script is assessed by a lenient or a strict examiner; and
that in an extreme case, while a candidate of a given merit may get a First
Class/Division, another student of equal merit may be declared to have H
262 SUPREME COURT REPORTS [2007] 1 S.C.R.

A failed. Therefore, the Commission constituted a Committee to carry out an
indepth study into the matter and suggest appropriate means to ensure that
the evaluation was on more equitable basis. The Committee by its Report
dated 2.9.1996 suggested statistical scaling system as the remedy and
recommended the linear standard score method which operates on the
following formula :
B
Z= Assumed mean+ [ (X-M) x Assumed S.D.]
SD

Z= is the Scaled Score.
c X = is the Raw mark.

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

S.D. is the Standard Deviation of Raw Marks of the group/subject.
D
The Committee suggested the following 'assumptions' or 'parameters' for
applying the formula :
1
(i) Assumed Mean will be taken as Half of the maximum marks of
the group/subject.
E
(ii) Assumed S.D. will be taken as one-fifth of the assumed mean.

(iii) If scaled score is less than zero after scaling, then candidates
will be allotted zero marks in the said group/subject.
F (iv) If scaled score after scaling is more than maximum marks, then
candidate will be allotted maximum marks in the said group/subject.

29. Eversince then, the Commission has been following the statistical
scaling. According to the Commission, the scaling method is rational,
G scientific and reasonable and would lead to assessment of inter se merit of
the candidates in a just and proper manner. The use of the said method was
reviewed by an Expert Committee on 31. 7 .2000 and it was reiterated that the
formula and method presently used for scaling can be continued to be used
in future also and there was no need to change the same. Thus the scaling
is continued.
H
SANJAY SINGH•'. U.P. PUBLIC SERVICECOMMN. ALLAHABAD [RAVEENDRAN, J.) 263

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

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

(30.2) A similar view is expressed by JP. Guilford & Benjamin
Fruchter (in their treatise 'Fundamental Statistics in Psychology and C
Education' page 476-477). They say that two conditions are to be satisfied
to apply scaling: (i) The population of students from which the distributions
of scores arose must be assumed to have equal means and dispersions in
all the abilities measured by the different tests; and (ii) the form of
distribution, in terms of skewness and kurtosis, must be very similar from
one ability to another. He proceeds to refer to the disadvantages of scaling D
thus :

"Unfortunately, we have no ideal scales common to all these tests,
with measurements which would tell us about these population
parameters. Certain selective features might have brought about a E
higher mean, a narrower dispersion, and a negatively skewed
distribution on the actual continuum of ability measured by one
test, and a lower mean, a wider dispersion, and a symmetrical
distribution on the continuum of another ability represented by
another test. Since we can never know definitely about these
features for any given population, in common scaling we often F
have to proceed on the assumption that actual means, standard
deviations, and form of distribution are uniform for all abilities
measured. In spite of these limitations, it is almost certain that
derived scales provide more nearly comparable scales than do raw
scores." G
(30.3) V. Natarajan & K. Gunasekaran in their treatise 'Scaling
Techniques - what, why and how', have warned :

11
lf one studies the literature in this field, he can find that there are
a number of methods available ranging from simple to complex. H
I
264 SUPREME COURT REPORTS [2007] 1 S.C.R.

A Each has its own merits and demerits and can be adopted only
under certain conditions or making certain assumptions."

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

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

... .... the choice of the mean and standard deviations is purely
c arbitrary. Each has its own advantages and disadvantages and
useful for specific purpose only. It may be emphasized here that
both the standard scores and linear standard scores retain the
shape of the original distribution of raw marks. Therefore, if the
original distribution is 'normally' distributed, then any type of
Linear Smndard Scores will also be 'normally' distributed. Taking
D
the Normal Curve as the model, various points in other scales are
plotted. It should be, however, noted that the kind of relationship
shown in Figure -2 between normal curve vis-a-vis the other scores 1
are valid only if the raw score distribution can be assumed to
approximately normally distributed.
E
(emphasis supplied)

(30.4) The Kothari Report, 1976 ('Policy & Selection Methods' published
by UPSC) while referring to scaling in regard to papers in different subjects,
F by using appropriate statistical techniques as a recognized procedure for
improving the reliability of examination as a tool for selection, however
cautions that the method should be under continuous review and evaluation,
that continuing improvement in the light of experience and new developments,
taking into account advancement of knowledge, is essential.

G 31. The entire basis for applying scaling in regard to marks awarded
by different examiners in the same subject is the assumption that all answer
scripts have been thoroughly mixed, and that equal number of answer
scripts drawn at random and sent to each examiner for valuation will contain
answer scripts of candidates with equal distribution of abilities. When the
H distribution of abilities in each batch is approximately equal, the mean marks
y
SANJAY SINGH 1·. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 265

anct standard deviation of the scaled marks of each batch will be identical. A
To put it differently, if each examiner is sent 300 answer scripts and each
batch of 300 candidates have almost equal number of good, average and
poor standard students, they can all be brought to a common scale for
comparing their merit inter se. But we find that there is no such broad equal
distribution in the examination with which we are concerned. We find from
the Tables furnished that the range of marks awarded and the range of
B
deviation have varied enormously from examiner to examiner in the same
subject. We extract below these ranges, which demonstrate the wide diversity,
in tum indicating that scaling method was inappropriate for bringing
uniformity in valuation :

Subject No. of No. of Scripts Mean Standard Minimum Maximum
c
Examiner Examined Marks Deviation Marks Marks
(range) of the of marks (awarded (awarded
examiner allotted by the by the
(range) (range) Examiner) Examiner)

I. General 18 50 to 800 47.4 to 83.91 12.24 to 20.49 10 to 43 84 to 126
Knowledge D
2. Language 14 231 to 800 37 .51 to 82.43 14.16 to 31.75 0 to 30 105 to 145
3. Law-I II 300 to 900 30.83 to 56.90 12.45 to 17.85 Oto JO 83 to IJ3
4. Law-II 10 200 to 1402 70.57 to 94.40 11.48 to 20.05 0 to 40 113 to 132
5. Law-III 14 150 to 1000 63.14 to 86.74 13.16 to 19.54 0 to 31 99 to 134

32. The formula heavily relies upon the standard deviation among the E
candidates in a given pool or batch. The standard deviation is a measure
of the range and distribution of marks awarded by an examiner. It depends
on the set of students in any given pool. If an examiner has a set of
extremely good or poor standard candidates and another examiner has a
more even set of average candidates, the standard deviation would be high F
for the first examiner and low for the second examiner, having regard to the
range of distribution of marks. Consequently the scaled marks of a candidate
calculated on a formula heavily relying on standard deviation, would be
based on the cumulative standard deviation of all the candidates in his pool
rather than the strictness or liberality of the examiner. Therefore, standard
deviation has only a bearing on ascertaining the range of capabilities of the G
candidates in a given examination and in no way eliminates the anomalies
arising out of the strictness or liberality of the examiner. We may demonstrate
the fact that the scaled marks vary with reference to the extent of standard
deviation (and has nothing to do with the issue of strictness or liberality of
the examiner), from the following examples : H
266 SUPREME COURT REPORTS [2007) I S.C.R.

A Actual Average Strict Examiner No. I Strict Examiner No. II
Marks (Mean)
marks Standard Scaled Standard Scaled
Deviation Marks Deviation Marks
,.,,.,
0 50 15 -'-' 25 (j)
5 50 15 40 25 64
B 20 50 15 (j) 25 76

Actual Average Liberal Examiner No. I Liberal Examiner No. II
Marks (Mean)
c Marks Standard Scaled Standard Scaled
Deviation Marks Deviation Marks
50 9) 15 47 25 68
120 9) 15 140 25 124
150 9) 15 180 25 148
D
The reason given for introducing scaling is to cure the disparity on account
of strictness or liberality of the examiners. But the effect of the scaling
formula adopted by Commission is to average the marks of a batch of ·
candidates and convert the raw marks of each candidate in the batch into
scaled marks with reference to the average marks of the batch and the
E 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
F 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.

33. We will next refer to apparent anomalies which show scaling of
G marks is arbitrary. The Commission has furnished five Tables relating to the
five subjects showing the following paiiiculars : (i) The number of examiners,
(ii) Number of answer scripts allotted to each examiner; (iii) Mean marks of
each examiner; (iv) Standard deviation of the marks allotted by each
examiner; (v) Minimum raw marks secured by a candidate in the batch of
H answer-scripts corrected by each examiner; (vi) Maximum raw marks secured
SANJAY Sl~-IGll r. IJ.P. PUBLIC SERVICE COMMN. ALLAHABAD [R.\Vt r l-.,llk •,;-.,. J.J 267

by a candidate in the batch of answer-scripts corrected by each examiner. A
The Commission has also furnished the tabulation of sc;. led and actual
marks of all the candidates. An examination of the particulars furnished
discloses several glaring anomalies.

!. Award of high scaled marks to those 11/io si:c111 (;j ;;;c"o murks
B
We find from Table-II (furnished by the Commission) t1m u11..' <.!;s,ver scripts
relating to Language Paper were distributed among 14 l'!Xaminers. Several
candidates whose papers were evaluated by examiners 2, 3, 4, 5. 6, 8. i 3, &
14 have secured zero marks. Evidently only those who did not attt'npt any
answer or had absolutely no knowledge of either Hindi or English would C
have got zero marks. But such candidates who actually secured zero marks
have strangely been assigned scaled marks ranging from 36 to 67, depending
upon the examiner, in whose pool, they fell. We give below scaled marks
obtained by different candidates who secured zero marks with reference to
the examiners.
D
Subject: Language
Examiner Raw Marks of Scaled Marks
No. the candidate
2 0 (I 00)+(0-66.58 x20) = 44
23.73 E
3 0 100+(0-55.29 x20) = 47
20.91
4 0 I 00+(0-74.88 x20) = 0 (-5 to be
14.20 taken as zero)
- F
0 100+(0-44.48 x20) = 58
)
; 20.06
II () 0 j 00+(0-61.52 x20) = 50
r _____ I
\_. 24.8
8 (I 100+(0-52.86 x20) = 67
31.75 G
13 0 100+(0-43.11 x20)=66
25.50
14 0 100+(0-54. 77 x20) = 36
17.02
H
'

268 SUPREME COURT REPORTS [2007] 1 S.C.R

A But unfortunately in the same subject, candidates who secured 32 to
30 marks, assessed by Examiner No. l 0, got their marks reduced to 31 to 28
on scaling. (Mean being 80.93 and SD being 14.16). The devastating effect
of awarding such high scaled marks, that too ranging from 36 to 67, to those
who have secured 'O' need not be stressed. In fact UPSC has clarified that
whenever they follow scaling procedure, no scaling is applied to 'O' marks.
B But the Commission had not applied its mind to this aspect when applying
'scaling'.

II. Equalization of marks of persons who secured very high marks.

c The scaling has equalized the different high end marks of candidates, where
the mean marks is low. To give a hypothetical example ifthe mean marks is
70 and the standard deviation is 15, all candidates securing raw marks 145
to 200 will be assigned the equal scaled marks of200. If the mean marks are
60 and the standard deviation is 15, all candidates securing 135 to 200 will
be awarded the scaled marks of200. Similarly, ifthe mean marks are 80 and
D
the standard deviation is 20, all candidates securing raw marks between 180
to 200 will be awarded equal scaled marks of 200. In addition to the above
hypothetical examples, we may give a concrete example. In regard to
Examiner No. 14 in Language Paper, Table-II shows that the highest marks
secured is 145. In regard to that examiner, the mean marks is 54.77 and
E standard deviation is 17.02. By applying the scaling formula, the marks of
145 secured by that candidate becomes 206 which is taken as 200 as per the
formula. All candidates who were awarded raw marks of 140 to 145 by
Examiner No. 14 in Language paper will be assigned the equal scaled marks
of 200. This leads to unequals being treated as equals. In case of candidates
F securing marks in higher ranges on scaling, there is likelihood of their marks
being equalised with those who secured lesser marks thereby losing the
benefit of their higher marks and inter se merit.

III. Equalization of marks of persons who secured low marks.

G The scaling has also equalized the different low end marks of candidates,
where the mean marks is high. To give a hypothetical example, if the mean
marks is 95 and the standard deviation is 11, then all candidates securing
40 and below will be awarded only 'O'. To give a concrete example, in regard
to Examiner No. 7 in Law Paper-II, one candidate has secured 32. In respect
H of that examiner, the mean marks is 94.4 and standard deviation is 11.48. By
SANJAY SINGH"· U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN, J.) 2fj9

applying the scaling formula, the scaled marks of the said candidate who A
secured 32 becomes 'O'. Not only that. Scaled marks of all candidates who
were given raw marks of 37 and less by that examiner, becomes 'O'. This
leads to unequals being treated as equals and candidates who secured
marks in the lower ranges (from that examiner) losing out to candidates who
performed much worse but were in the pool of other examiners.
B
IV. Inadequate mixing of answer scripts and improper distribution of
answer scripts :

The basic requirement for scaling is that all answer scripts will be mixed
thoroughly and that approximately equal number of answer scripts drawn at C
random will be allotted to each examiner so as to infer equal distribution of
ability of candidates in each batch of answer scripts. But that was apparently
not done by the Commission. We give below the details of distribution of
answer scripts which demonstrate that they were nowhere equal :

General Knowledge Paper (18 Examiners)- The distribution of answer
D
scripts is: 50 papers (2 examiners), 100 (3 examiners), 150 (1examiner),200
t
I
(2 examiners), 250 (2 examiners), 300 (1 examiner), 350 (1examiner),400 (1
examiner), 500 (2 examiners), 648 (1 examiners) and 800 (2 examiners).

Language Paper - (14 Examiners) The distribution of answer scripts is : E
231 papers (1examiner),300 (5 examiners), 350 (1examiner),400 (2 examiners),
450 (3 examiners), 700 (1 examiner), 800 (1 examiner).

Law Paper-I (11 Examiners) - The distribution of answer scripts is : 100
papers (1examiner),300 (2 examiners), 400 (2 examiners), 450 (1 examiner), F
600 (1examiner),700 (1examiner),775 (1examiner),800 (1examiner),900 (1
examiner).

Law paper-II (JO examiners) - The distribution of answer scripts is : 200
papers (1 examiner), 300 (1 examiner), 350 (1examiner),450 (1 examiner), 500
(2 examiners), 650 (2 examiners), 700 (1examiner),1402 (1 examiner). G

Law paper-III (14 examiners) - The distribution of answer scripts is : 150
papers (3 examiners), 200 (1examiner),250 (1examiner),300 (1 examiner), 350
(2 examiners), 400 (1 examiner), 444 (1 examiner), 500 (1 examiner), 550 (1
examiner), 900 (1examiner),1000 (1 examiner). H
270 SUPREME COURT REPORTS [2007] 1 S.C.R.

A Very large variation in the number of answer scripts allotted to each examiner
has a bearing on the mean marks and the standard deviation. The fact that
there was no proper randomizati::m and distribution is also evident from the
fact that though approximately equal number appeared in each segment of
I 0000 from among the roll nos. 1 to 51524, selection is inexplicably high in
the first segment of roll nos. I to 10000. The particulars of roll number
B segments and the number of persons who appeared for the main examination
from each segment are as follows :
-t ..,.,
Roll Numbers No. of Persons
1. 1-10000 1072
c 2. 10001 to 20000 1115
3. 2000 l to 30000 1124
4. 3000 l to 40000 1031
5. 4000 l to 50000 lll2
D 6. 50001to51524 170

If there was proper randomization and distribution leading to equal distribution 1
of the candidate capacity, it would have been expected that the number of
selected candidates also would have been proponionate to each segment.
But we find that out of 347 candidates selected, as many as 139 candidates
E fall in first segment alone (within Roll nos. l 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. l to I 0000.
Be that as it may.

F V Low raw marks were further lowered (or made into 'O ') and higher raw
marks were further increased due to scaling

Example : Law Paper-JI.
Examiner No. 5 33 became 9; and 120 became 146
G ExaminerNo. 6 All marks between 9 and 1 became O;
and 119 became 139
Examiner No. 7 All marks between 37 and I became O;
and 132 became 165
Examiner No. 9 4 became O; and 122 became 156
H
SANJAY SINGH 1•. U.P. PUBLIC SERVICE COMMN. ALLAHABAD (RAVEENDRAN, J.] 271

In contrast, in some cases all raw marks whether low or high, became A
higher.
'
Example: Law Paper-I.
Examiner No. 4 I became 56; and 102 became 177.
Examiner No. 6 : 9 became 66; and 85 became 184. B
Examiner No. 9 : 1 became 60; and 107 became 184.
Examiner No. 10 : 9 became 49; and 83 became 156.
+
•
The petitioners have referred to certain other absurdities arising from the
application of scaling, with reference to the results of 2000 examination C
which was the subject matter of S. C. Dix it. (For example, it was demonstrated
that in some cases, the low marks awarded by liberal examiners had
increased and high marks awarded by strict examiners had reduced, thereby
achieving the opposite of the goal sought to be achieved - that marks
given by liberal examiners should be reduced and marks given by strict
examiners should be increased). We however consider it appropriate to rely D
only on the anomalies/absurdities demonstrable with referenceto 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.

34. When selections are made on the basis of the marks awarded, and
the inter se ranking depends on the marks awarded, treating unequals E
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 F
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 I 00 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-bum and dissatisfaction. When the object of
the selection process is to try to select the best, and even one mark may G
make the difference between selection or non-selection, the system of
scaling which has the effect of either reducing or increasing the marks in an
arbitrary manner will lead to unjust results. This is in addition to the main
disadvantage that scaling does not remedy the ill-effects of examiner
variability arising out of strictness or liberality in valuation. H
272 SUPREME COURT REPORTS (2007) l S.C.R.

A 35. The illustrations given above with refer~nce to the 2003 examinations t:.
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.

B 36. 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
c 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
D approximately the same as the distribution of marks in the
batch of answer scripts sent to every other examiner.
1
(iv) In the Linear Standard Method, there is no guarantee that the
range of scores at various levels will yield candidates of
comparative ability.
E
(v) Any scaling mt:thod 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
F
the general variation which exists from examiner to examiner, "'I

but not a solution to solve examiner variability arising from
the 'hawk-dove' effect (strict/liberal valuation).
,.
The material placed does not disclose that the Commission or its expert
G 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.
H
SANJAY SINGH 1·. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN, J.] 273

)1 37. We may now refer to the decision of this Court in S. C. Dixit. The A
..... validity of scaling was considered in paras 31 to 33 of the judgment extracted
below:

"31. There is a vast percentage difference in awarding of marks
between each set of examiners and this was sought to be minimized
by applying the scaling fonnula. [f scaling method had not been B
used, only those candidates whose answer-sheets were examined

- + by liberal examiners alone would get selected and the candidates
whose answer-sheets were examined by strict examiners would be
completely excluded, though the standard of their answers may be
to some extent similar. The scaling system was adopted with a view c
to eliminate the inconsistency in the marking standards of the
examiners. The counsel for the respondents could not demonstrate
that the adoption of scaling system has in any way caused injustice
to any meritorious candidate. If any candidate had secured higher
marks in the written examination, even by applying scaling fonnula,
he would still be benefited. D

1 32. The Division Bench of the High Court observed that the
process of scaling was done examiner-wise only and the scaling
formula did not take into consideration the average of mean of all
the candidates in one particular paper but took the mean of only E
that group of candidates which has been examined by one single
examiner. The counsel for U.P. PSC submitted that the observation
made by the High Court is incorrect. The scaling formula was
adopted to remove the disparity in the evaluation of 14 examiners
who participated in the evaluation of answer-sheets and the details
'y have also been furnished as to how the scaling formula was F
adopted and applied. Therefore, we do not think that the observation
of the Division Bench that the Commission did not take care 0f
varying standards which may have been applied by different
examiners but has sought to reduce the variation of the marks
awarded by the same examiner to different candidates whose G
answer-sheets had been examined, is correct. The Division Bench
was of the view that as a result of scaling, the marks of the
candidates who had secured zero marks were enhanced to 18 and
-\ this was illegal and thus affected the selection process. The finding
is to be understood to mean as to how the scaling system was
H
274 SUPREME COURT REPORTS [2007] 1 S.C.R.

A applied. 18 marks were given notionally to a candidate who secured
zero marks so as to indicate the variation in marks secured by the
candidates and to fix the mean marks.

33. In that view of the matter, we do not think that the application
of scaling formula to the examinations in .question was either
B arbitrary or illegal. The selection of the candidates was done in a
better way. Moreover, this formula was adopted by U.P. PSC after
an expert study and in such matters, the court cannot sit in
judgment and interfere with the same unless it is proved that it was
an arbitrary and unreasonable exercise of power and the selection
c itself was done contrary to the Rules. Ultimately, the agency
conducting the examination has to consider as to which method
should be preferred and adopted having regard to the myriad
situations that may arise before them."

S. C. Dixit, therefore, upheld scaling on two conclusions, namely (i) that the
D 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
E 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 scientifrc 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
F 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
G candidates who take examinations in different optional subjects, has been
inappropriately and mechanically applied to a situation where the need is to
eliminate examiner variability on account of strict/liberal valuation. We have
found that the scaling system adopted by the Commission leads to irrational
results, and does not offer a solution for examiner variability arising from
strict/liberal examiners. Therefore, it can be said that neither of the two
H
SANJAY SINGH 1•. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 275

_.,. assumptions made in S. C. Dix it can validly continue to apply to the type A
-. 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.

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

-~
(i) KamleshHaribhaiGoradiav. Unionofindia, [1987] 1 Guj.LR
157, upheld by this Court by order dated 11.3 .1987 in SLP (C)
No. 14000/1986.

(ii) Muhesh Kumar Khandelwal v. State of Rajasthan, [1994] 1
c
Raj .LR 533 upheld by this Court by order dated 22.1.1996 in
Sl..P(c) No. 15682-15684 of 1994.

(iii) K. Channegowda v. Karnataka Public Service Commission,
[2005] 12 sec 688. D
All the three cases related to moderation and not scaling. There are,
however, passing references to scaling as one of the methods to achieve
common standard of assessment. The fact that scaling is a standard method
of assessment, when a common base has to be found for comparative
assessment of candidates taking examinations in different optional subjects,
E
is not in dispute. In fact the Commission may continue to adopt the said
system of scaling, where a comparative assessment is to be made of
candidates having option to take different subjects. The question is
whether scaling, in particular, linear standard scaling system as adopted by
the Commission, is a suitable process to eliminate 'examiner variability' when F
different examiners assess the answer scripts relating to the same subject.
None of the three decisions is of any assistance to approve the use of
method of 'scaling' used by the Commission.

39. Learned counsel for the Commission also referred to several
G
decisions in support of its contention that courts will be slow to interfere
with matters affecting policy requiring technical expertise and leave them for
decision of experts. (State of UP. v. Renusagar Power Co. Ltd., [1988] 4
-+ SCC 59, Tata Iron & Steel Co. Ltd. v. Union of India, [1996) 9 SCC 709,
Federation of Railway Officers Association v. Union of India, [2003] 4 SCC
289. There can be no doubt about the said principle. But manifest arbitrariness H
276 SUPREME COURT REPORTS [2007] l S.C.R.

A and irrationality is an exception to the said principle. Therefore, the said ,-;
decisions are of no avail. .-

40. We should, however, record the fair submission on behalf of the
Commission that it is not irrevocably committed to any particular system and
will adopt a different or better system if the present system is found to be
B defective.

Re : Point No. (iv).

41. The petitioners have requested that their petitions should be

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

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

(a) If the aggregate ofraw marks in the written examination and the marks
in the interview of any petitioner is less than that of the last selected
candidate in the respective category, he will not be entitled to any relief
H
y
SAN JAY SINGH r U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN. J.] 277

(for example, the petitioners in WP(C) No. 165/2005 belonging to the A
Category 'BC' have secured raw marks of 361 and 377 respectively in
the written examinations, whereas the last five of the selected candidates
in that category have secured raw marks of 390, 391, 397, 438 and 428
respectively. Even after adding the interview marks, the marks of the
petitioners in W.P. [C] No.165/2005 is less than the marks of the
selected candidates). B

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

KKT. Petitions partly allowed .

.