# Alok Kumar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2020) 10 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-23
- **Case number:** WRIT - A No. 6649 of 2020
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-kumar-singh-ors-v-state-of-u-p-ors-45350
- **Pages:** 16

## Headnote

A. Service Law - UPPSC (Procedure and
Conduct of Business) Rules, 2011 - Rule
51- UP State Public Service Commission
(Regulation and Procedure) Act, 1985 -
Respondent
-
Recruitment/Selection
Process - Scaling Methodology -

Aspect of scaling has nothing to do with
the right of the petitioners to obtain
copies of his answer script - There is no
violation
of
law
under
Right
to
Information Act - Petitioners allegation is that
not providing information amounts to violation
of law. Mandate of law is, examinee in a public
examination has a right to inspect his evaluated
answer book or taking certified copies thereof.
Such a book is document and record in terms of
Sections
2(f)
and
2(i)
and
therefore,
"information" under Right to Information Act.
(Para 20)

In the present case, dispute is not w.r.t.
irregularities in valuation of the answer book but
is w.r.t. scaling methodology adopted by UPPSC.
There is no allegation of irrational, illogical or
arbitrary valuation but whole writ petition is
based on ground of methodology of the
scaling and on the premise that its
adoption has been disapproved by the
Supreme Court in Case of Sanjay Singh
(infra). (Para 22, 23)
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
395
B. Present facts are distinguishable from
the Case of Sanjay Singh (infra) - The law
laid-down in case of Sanjay Singh (infra) is on
the issue of inconsistency between Rules for
appointment of Judicial Officers and the Rules of
the Public Service Commission. The ratio is that
in absence of anything to the contrary, Rules of
2001 will have supremacy over the Rules of
Public Service Commission. (Para 35)

The back drop in which law in case of Sanjay
Singh (infra) has been laid down is that if Rules
do not permit scaling then it cannot be adopted
to. Secondly where all the candidates taking up
judicial service examination are appearing in
common papers then 'Subject variability' being
not present, scaling has no application and the
SC has held that moderation is a better
methodology. (Para 33)

(i) Rule 51, UPPSC Rules, 2011, has
provision for adoption of any method,
device or formula which is considered
proper for the purpose of eliminating
variation
in
the
marks
awarded
to
candidates
at
any
examination
or
interview - Therefore, petitioner's submission,
that neither the Act of 1985 nor Rules, 2011
prescribe for any scaling method and in absence
of any Rules or the Act, scaling could not been
adopted, is not made out. Also, there is no
dispute or challenge to validity of Rule 51 of PSC
Rules. (Para 11, 34, 36, 49)

(ii) 'Subject Variability' is present - In the
present case it is admitted that all the candidates
did not appear in the same papers and they had
opted for different subjects (Optionals), therefore,
Combined State/Upper Subordinate Services (PCS)
Examination
is
different
from
examination
conducted for selection of Civil Judge. (Para 35)

C. Principle of Estoppel - When a cand

## Text

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394 INDIAN LAW REPORTS ALLAHABAD SERIES
produce
manifest
inconvenience
and
absurdity."

9.

In
the
case
of
Gunjan
Bharadwaj (supra) it was held by a
Division Bench of this Court that the
authorities could not be held liable for
non reaching of postal articles of the
petitioner. The relevant paragraph of
the aforesaid judgement is reproduced
hereinbelow:-

"Against this background, the
Corporation can not be held liable for
non-reaching of postal articles to the
petitioner. Even if we accept that the
principle of contract regarding offer
and acceptance is applicable between
the petitioner and the Corporation, then
in that case as soon as an offerer
dispatches its offer, his duty is over. We
are only required to see whether such
offer was made within the prescribed
period or not. Factually, we find that it
was dispatched within the prescribed
period. We also find that in the
brochure it has been categorically said
that the Corporation is not responsible
for any postal delay. The petitioner
seeing such clause with open eyes
wanted to make offer, pursuant to which
the call letter was issued to her by the
Corporation
well
within
time.
Thereafter, no responsibility lies on the
part of the Corporation for such delay."

10. In this view of the matter, I am
of the view that no relief, either
mandatory or compensatory in nature,
can be granted to the petitioner.

11. The writ petition has no force.
Accordingly, it is dismissed, however,
without imposing any cost.
----------
(2020)10ILR A394
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE
THE HON'BLE VIVEK AGARWAL, J.

WRIT - A No. 6649 of 2020

Alok Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anurag Tripathi, Sri Gaurav Kumar

Counsel for the Respondents:
C.S.C., Sri M.N. Singh

A. Service Law - UPPSC (Procedure and
Conduct of Business) Rules, 2011 - Rule
51- UP State Public Service Commission
(Regulation and Procedure) Act, 1985 -
Respondent
-
Recruitment/Selection
Process - Scaling Methodology -

Aspect of scaling has nothing to do with
the right of the petitioners to obtain
copies of his answer script - There is no
violation
of
law
under
Right
to
Information Act - Petitioners allegation is that
not providing information amounts to violation
of law. Mandate of law is, examinee in a public
examination has a right to inspect his evaluated
answer book or taking certified copies thereof.
Such a book is document and record in terms of
Sections
2(f)
and
2(i)
and
therefore,
"information" under Right to Information Act.
(Para 20)

In the present case, dispute is not w.r.t.
irregularities in valuation of the answer book but
is w.r.t. scaling methodology adopted by UPPSC.
There is no allegation of irrational, illogical or
arbitrary valuation but whole writ petition is
based on ground of methodology of the
scaling and on the premise that its
adoption has been disapproved by the
Supreme Court in Case of Sanjay Singh
(infra). (Para 22, 23)
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
395
B. Present facts are distinguishable from
the Case of Sanjay Singh (infra) - The law
laid-down in case of Sanjay Singh (infra) is on
the issue of inconsistency between Rules for
appointment of Judicial Officers and the Rules of
the Public Service Commission. The ratio is that
in absence of anything to the contrary, Rules of
2001 will have supremacy over the Rules of
Public Service Commission. (Para 35)

The back drop in which law in case of Sanjay
Singh (infra) has been laid down is that if Rules
do not permit scaling then it cannot be adopted
to. Secondly where all the candidates taking up
judicial service examination are appearing in
common papers then 'Subject variability' being
not present, scaling has no application and the
SC has held that moderation is a better
methodology. (Para 33)

(i) Rule 51, UPPSC Rules, 2011, has
provision for adoption of any method,
device or formula which is considered
proper for the purpose of eliminating
variation
in
the
marks
awarded
to
candidates
at
any
examination
or
interview - Therefore, petitioner's submission,
that neither the Act of 1985 nor Rules, 2011
prescribe for any scaling method and in absence
of any Rules or the Act, scaling could not been
adopted, is not made out. Also, there is no
dispute or challenge to validity of Rule 51 of PSC
Rules. (Para 11, 34, 36, 49)

(ii) 'Subject Variability' is present - In the
present case it is admitted that all the candidates
did not appear in the same papers and they had
opted for different subjects (Optionals), therefore,
Combined State/Upper Subordinate Services (PCS)
Examination
is
different
from
examination
conducted for selection of Civil Judge. (Para 35)

C. Principle of Estoppel - When a candidate
appears
in
an
examination
without
objection and is subsequently found to be
not successful a challenge to the process is
precluded - Petitioners participated in the
selection process and there is specific mention in
the scheme as was advertised by the Commission
in regard to scaling system, therefore, after being
unsuccessful petitioners have no right to challenge
the scaling system and they are estopped from
challenging the same. (Para 37-41, 49)
D.
In
absence
of
any
evidence
to
substantiate the allegations pertaining to
resort to scaling of marks, to deprive more
meritorious candidates of their legitimate
right to be selected, such contention cannot
be accepted. (Para 42)

E. In absence of impleadment of selected
candidates as parties, petitioners are not
eligible to seek desired relief of quashing of
the results. (Para 44, 49)

F. The party who invokes the extraordinary
jurisdiction of the SC u/Article 32 or of a
HC u/Article 226 of the Constitution, is
supposed to be truthful, frank and open. He
must disclose all material facts without any
reservation even if they are against him - It
was observed that petitioner nos. 1, 2, 5, 7 and 8
are guilty of suppressing of correct facts. They
made an incorrect declaration that no earlier writ
petition has been filed by them before the
Hon'ble High Court or Lucknow Bench of this
Court or any other court of law pertaining to the
same cause of action involved in the present writ
petition. Whereas, it was observed that they were
petitioners in Writ Petition No. 5302 of 2020
claiming the same relief as has been sought in
the present writ petition. (Para 15-18, 50-53)

Writ petition dismissed. (E-4)

Precedent followed:

1. Dhananjay Malik Vs St. of Uttranchal, (2018)
4 SCC 171 (Para 38)

2. U.O.I. Vs M. Chandra Shekharan, (1998) 3
SCC 694 (Para 39)

3. Gurmeet Pal Singh Vs St. of Punj. & anr.,
(2018) 7 SCC 260 (Para 40)

4. Prashant Ramesh Chakkarwar Vs UPSC,
(2013) 12 SCC 489 (Para 42)

5. All India State Bank Officers Federation Vs
U.O.I., 1990 Supp. SCC 336 (Para 51)

6. Hindustan Transport Corporation Vs St. of
U.P., AIR 1984 SC 953 (Para 52)

Precedent distinguished:
396 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Sanjay Singh & anr. Vs U.P. Public Service
Commission, Allahabad & ors., (2007) 3 SCC
720 (Para 1)

2. UPPSC Vs Subhash Chandra Dixit, (2003) 12
SCC 701 (Para 10)

3. Central Board of Secondary Education & anr.
Vs Aditya Bandopadhyay & others, (2011) 8 SCC
497 (Para 11, 20)

Precedent cited:

1. Bhanwar Lal Vs St. of Raj. & anr. (S.B.), Civil
Misc. Writ Petition No. 1211 of 2014, decided on
03.03.2014 (Para 9)

2. Manoj Kumar Yadav Vs PPPSC, Civil Appeal
No. 2326 of 2011, decided on 16.02.2018 (Para
13)

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Petitioners who admittedly undertook
examination in terms of advertisement issued
by the UP Public Service Commission on
6.7.2018 for Combined State / Upper
Subordinate (PCS) Examination, 2018 and
Assistant Conservator of Forest (ACF)/
Range
Forest
Officer
(RFO)
Services
Examination, 2018, are challenging the
selection process on the ground that since
scaling method has been adopted, therefore,
in the light of the judgment of the Supreme
Court in case of Sanjay Singh and another
Vs. U.P. Public Service Commission,
Allahabad and others as reported in (2007)
3 SCC 720, selection process has been
vitiated. It is prayed that a writ, order or
direction in the nature of certiorari quashing
the impugned result of PCS-2018 main
examination declared on 23.6.2020 by
UPPSC, be granted. It is also prayed that
UPPSC be directed by issuing a writ, order or
direction in the nature of mandamus to
declare the result of main exam afresh and
calling
for
records
relating
to
scaling/moderation method applied in PCS18 main exam. Petitioners have also prayed
for the following other reliefs:

(i) Issue a writ, order or direction
in the nature of mandamus commanding the
respondent no. 2 to provide the descriptions
(names, roll no, marks obtained, category
etc.) of the selected candidates in the
selection list when the final result is declared.

(ii) Issue a writ, order or direction
in the nature of mandamus commanding
respondent no. 2 to issue the marks sheets
(raw marks & scaled marks both) of the
petitioners who appeared in main / interview
exam after declaring the result as soon as
possible within a specified time-frame.

(iii) Issue a writ, order or direction
in the nature of mandamus commanding the
respondent no. 2 to answer any application
submitted under Right to Information Act, in
a
manner
taking
into
consideration
practicality (to fix a reasonable date in order
to allow the candidate to inspect his answer
scripts of written examination), so that it may
not appear that UPPSC takes RTI queries as
a burden and a tool to harass candidates.

(iv) Issue any other suitable writ,
order or direction in addition to & in
supplement to refer the above, as this
Hon'ble Court may deems fit and proper in
view of the facts and circumstances of the
case.

(v) Award the cost of the writ
petition to the petitioners.

2. Learned counsel for the petitioners,
submits
that
UP
Public
Service
Commission, Prayagraj (Respondent no. 2)
is a constitutional autonomous body and its
main duty is to conduct examination for
appointment to various services of the
State.

3. It is submitted that the general
business and functions of UPPSC are
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
397
regulated by the provisions of UPPSC
(Procedure and Conduct of Business)
Rules, 2011 (hereinafter referred to as
Rules, 2011) and UP State Public Service
Commission (Regulation and Procedure)
Act, 1985 (hereinafter referred to as Act,
1985).

4. It is submitted that vacancies were
advertised on 6.7.2018 for approximately
984 posts under various categories with the
rider of reservation.

5. The examination is to be conducted
by the UPPSC in three stages consisting of
:- (i) Preliminary Examination (objective
type and multiple choice), (ii) Main
examination (conventional type) i.e. written
examination and (iii) viva voice i.e.
personality test / interview.

6. Petitioners case is that they had
qualified for the main examination and
were issued admit cards after qualifying in
preliminary examination. In the main
examination, a total of 16738 candidates
have been declared qualified to appear in
the
interview.
It
is
submitted
that
admittedly petitioners did not pass written
(main examination) except for petitioner
No. 4, Alok Kumar Singh, who has become
eligible to appear in the interview and has
been called for interview on 31.7.2020.

7. Petitioners contention is that they
were fully hopeful of success in the main
examination, but are shocked not to find
their names in the list of successful
candidates
when
result
for
main
examination was declared on 23.6.2020.

8. Petitioners contention is that
scaling method has been adopted as a result
of which candidates whose marks were
scaled have been subjected to several
anomalies and since marks of petitioner no.
1 were scaled to 934.06 against obtained
raw marks of 951 in the Public Service
Examination 2011, he could not succeed in
the examination.

9. Petitioners have placed reliance on
the judgment of Sanjay Singh (supra) and
of Rajasthan High Court in case of
Bhanwar Lal Vs. State of Rajasthan &
another (S.B. Civil Writ Petition No.
1211 of 2014 (decided on 3.3.2014). By
placing reliance on these judgments, it is
submitted that so called, scaling formula,
that has been used by UPPSC for result
processing is unjust, unfair and irrational. It
is submitted that, in fact, when scaling
system is applied over the raw-marks in
optional subject, then it results to, increase
or decrease. When the raw-marks are
converted into scaled marks, it causes
undue disadvantage to candidates who
appear in the main examination.

10. Counsel for the petitioner also
submits that in case of Sanjay Singh
(Supra) Hon'ble Supreme Court has held
that application of scaling formula as has
been approved in case of UPPSC Vs.
Subhash Chandra Dixit, (2003) 12 SCC
701, requires reconsideration and it is
further observed that
scaling system
adopted by the Commission leads to
irrational results and does not offer a
solution for examiner variability arising
from strict / liberal valuation.

11.

Learned
counsel
for
the
petitioners, based on aforesaid material
submits that the Commission by not
providing raw-marks, under Right to
Information Act has violated the ratio of
the judgment pronounced by the Hon'ble
Supreme Court in case of Central Board
of Secondary Education &another Vs.
398 INDIAN LAW REPORTS ALLAHABAD SERIES
Aditya Bandopadhyay & others as
reported in (2011) 8 SCC 497, decided on
August, 09, 2011. It is submitted that
neither the Act of 1985 nor Rules, 2011
prescribe for any scaling method and
therefore adoption of scaling procedure to
remove examiner variability is against the
ratio of judgment of Sanjay Singh case
(Supra).

12. It is also submitted that if any Act,
Rule or judgment, having force of law,
provides something to be done in a
particular manner, then it should be done in
that manner alone, otherwise not at all.

13. Counsel for the petitioner also
submits that the judgment of the Supreme
Court rendered in case of Manoj Kumar
Yadav Vs. PPPSC in Civil Appeal No.
2326 of 2011 decided on 16.2.2018
reiterated that UPPSC must form the merit
list made on the basis of the marks allotted
to candidates as per judgment pronounced
in Sanjay Singh's case (Supra).

14. Sri M.N. Singh, learned counsel
for the UP Public Service Commission
submits that final result has been already
declared on 11.9.2020 after conducting the
interviews in which admittedly one of the
candidates out of the petitioners appeared.

15. It is submitted that petitioners in
para-1 of the writ petition has mentioned
that the present writ petition is the first
writ petition being filed by the petitioners
pertaining to the cause of action involved
in the writ petition. No earlier writ
petition has been filed by the petitioner in
this regard before the Hon'ble High Court
or the Lucknow Bench of this Court or
any other court of law for the same cause
of action.

16. He submits that earlier as many as
26 persons had filed Civil Misc. Writ
Petition No. 5302 of 2020; Anuj Dwivedi
and 25 others Vs. UP Public Service
Commission and 2 others praying for
issuance of writ, order or direction in the
nature of certiorari quashing the result of
main written examination of Provincial
Civil Services (PCS) Examination-2018 as
declared by UP Public Service Commission
(UPPSC) and determining the cut off for
declaring the list of the candidates eligible
to appear in the interview for selection and
further prayed to issue any other suitable,
writ, order or direction, which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case.

17. It is submitted that this relief is
similar to the prayer clause-1 in the present
writ petition. It is pointed that petitioner no.
7 Anuj Dwivedi, S/o Amar Nath Dwivedi,
R/o village Manaiya, Manaiya Kachar,
District Prayagraj was petitioner no. 1 in
Civil Misc. Writ Petition No. 5302 of 2020.
Similarly, petitioner no. 8 - Nirmal Kumar
Jaiswal, S/o Ram Prasad Jaiswal, R/o Bank
Road, Bank Road Chauraha, Prayagraj was
petitioner no. 2 in that writ petition.
Petitioner no. 1 Alok Kumar Singh, S/o
Ajay Pratap Singh is petitioner no. 3 in the
said writ petition whereas petitioner no. 2
Shashank Shekhar Singh, S/o Harinarayan
Singh is petitioner no. 4 in the said writ
petition. Petitioner no. 5 Upendra Kumar
Singh, S/o Narendra Pratap Singh, R/o
Ward
No.
03,
Dindayal
Nagar,
Robertsganj,
district
Sonebhadra
was
petitioner no. 9 in the said writ petition and
therefore,
it
is
apparent
that
these
petitioners namely petitioner nos. 1, 2, 5, 7
and 8 are guilty of suppressing of correct
facts from this Court and therefore this writ
petition filed on the basis of incorrect
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
399
declaration deserves to be dismissed in
regard to these petitioners.

18. It is also submitted that Civil
Misc. Writ Petition No. 5302 of 2020 has
been dismissed by a coordinate Bench of
this Court vide order dated 10.7.2020.

19. As far as another ground which
has been urged by learned counsel for the
petitioners that petitioners had sought
information under the Right to Information
Act, in regard to raw/scaled marks, but the
respondent authorities have not replied till
date, is concerned, there is an elaborate
mechanism under the Right to Information
Act, 2005 which provides for first appeal
and second appeal, and therefore if
petitioners
are
aggrieved
by
noncompliance of mandate of the Right to
Information Act, 2005 then they have
statutory remedy under the Act of 2005
itself.

20. Petitioners allegation is that not
providing information amounts to violation
of law laid down by the Hon'ble Supreme
Court in case of Central Board of
Secondary Education & another Vs. Aditya
Bandopadhyay & others (Supra). Mandate
of law is, examinee in a public examination
has a right to inspect his evaluated answer
book or taking certified copies thereof.
Such a book is document and record in
terms of Sections (2) (f) and 2 (i) and
therefore, "information" under Right to
Information Act.

21. Thus the ratio of the law laid-down
in case of CBSE Vs. Aditya Bandopadhyaya
(Supra) that an examinee is having right to
inspect his evaluated answer book and if
there are glaring irregularities in the
evaluation then that can be made a ground for
challenge before the High Court. This right is
subject to be read with harmony with
exemption and exclusion provision provided
under the Right to Information Act.

22. In the present case dispute is not in
regard to irregularities in valuation of the
answer book but dispute is in regard to
scaling methodology adopted by UPPSC
(Respondent no. 2) and therefore scaling
being a statistical tool and the object of the
scaling is to counter variation in standards
adopted by different examiners.

23. Thus it is apparent that aspect of
scaling has nothing to do with the right of the
petitioners to obtain copies of his answer
script and as such there is no allegation of
irrational, illogical or arbitrary valuation but
whole writ petition is based on ground of
methodology of the scaling and on the
premise
that
its
adoption
has
been
disapproved by the Supreme Court in Case of
Sanjay Singh (supra) and therefore UPPSC
should be directed to prepare the merit list on
the basis of raw-marks.

24. In view of such prayer in the writ
petition, this ground of not providing copies
under the Right to Information Act looses its
steam and therefore the judgment rendered by
the Hon'ble Supreme Court in case of CBSE
Vs. Aditya Bandopadhyay (Supra) has no
relevance to the facts and circumstances of
the present case.

25. Third ground which has been
taken by the petitioner which is the main
limb of the writ petition that respondent no.
2 is not entitled to adopt methodology of
scaling in PCS (Provincial Civil Services),
2018 main examination as it promotes
mediocrity at the cost of meritorious
candidates and this practice has been
discarded by Hon'ble Supreme Court in
case of Sanjay Singh (Supra).
400 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Facts of the case of Sanjay Singh
(Supra) are that on the request of Allahabad
High
Court,
UPPSC
issued
an
advertisement on 28.11.2003 to fill up 347
post of Civil Judge (JD) for which 51524
candidates
appeared
in
preliminary
examination
on
21.3.2004
and
the
preliminary examination was of objective
type consisting of 2 papers - General
Knowledge and Law. On 30.6.2004 results
were declared and 6046 candidates were
declared to be qualified to appear in the
main
examination
which
was
of
"descriptive" (conventional type). Main
examination consist of 5 papers, each
carrying 200 marks, namely, General
Knowledge, Language, Law-1, Law-2 and
Law-3. In fact, 5748 candidates took the
examination and thereafter 1290 candidates
were interviewed and the UPPSC declared
the final result on 1.5.2005 based on the
aggregate of scaled marks.

27. The unsuccessful candidates
challenged the selection process contending
that the statistical scaling method adopted
by the Commission is illegal and is
contrary to the Uttar Pradesh Judicial
Services Rules, 2001 (for short Judicial
Services Rules) . They contended that
conversion of their raw-marks into scaled
marks, is illegal as it was done by applying
arbitrary,
irrational
and
inappropriate
scaling formula. Therefore argument before
the court was that scaling has resulted in
meritorious students being ignored and less
meritorious students being awarded higher
marks and selected thereby violating the
fundamental rights of the candidates.

28. The Supreme Court framed as
many as 4 issues namely :-

(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 is arbitrary and
irrational, and whether the decision in case
of S.C. Dixit 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, which are the subject-matter of these
petitions, should be interfered with?

29. As far as question no. 2 is
concerned, in para-18, the Supreme Court
drew comparison between Rule 20 (3) of
UP Judicial Services Rules along with Note
(i) of Appendix-II and Rule 51 of PSC
Procedure Rules and noted that since field
of appointment of Civil Judge is occupied
by Rule 20(3) and note (i) of Appendix-II
of the Judicial Service Rules, they will
prevail over the general provisions in Rule,
51 of the PSC procedure Rules and in this
back drop it is held that the scaling system
adopted by the UPPSC contravenes Rules
20(1) so also Rule 20(3) and Note (i) of
Appendix II which specifically refers "to
the
marks
finally
awarded
to
each
candidates in the written examination" and
held that this implies that marks awarded
by the examiner can not be altered by
scaling.

30. While answering question no. 3
regard to validity of the decision of the
Supreme Court in case of UPPSC Vs.
Subhash Chandra Dixit and others (Supra),
also a case of appointment of Civil Judge
(JD) which approved the scaling system,
the Supreme Court did not approve the
ratio of the judgment of the SC Dixit
(Supra) which upheld scaling on two
conclusions namely (i) that the scaling
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
401
formula was adopted by the Commission
after an expert study and in such matter, the
Court will not interfere unless it is proved
to be arbitrary and unreasonable, and (ii)
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 on the ground that the
Supreme Court in case of Sanjay Singh
(Supra) found after an examination of the
manner in which scaling system has been
introduced and the effect thereby on the
present examination, that the system is not
suitable. In this back drop the Supreme
Court held that "neither of the two
assumptions made in SC Dixit case can
validly continue to apply to the type of the
examination with which we are concerned.
We are, therefore of the view that the
approval of the scaling system in SC Dixit
is no longer valid".

31. These findings are based on
appreciation of the material before the
Supreme
Court
in
regard
to which
following relevant paragraphs of judgment
in case of Sanjay Singh (Supra) needs to be
reproduced so the throw light on the
material on the basis of which conclusion
has been drawn in regard to question no. 3.

"25. A. Edwin Harper Jr. & V
Vidya Sagar Misra in their publication
"Research on Examinations in India" have
tried to explain and define scaling. We may
usefully borrow the same. A degree
'Fahrenheit' is different from a degree
'Centigrade'.
Though
both
express
temperature in degrees, the 'degree' is
different for the two scales. What is 40
Degrees in Centigrade scale is 104
Degrees in Fahrenheit scale. Similarly,
when marks are assigned to answer-scripts
in different papers, say by Examiner 'A' in
Geometry and Examiner 'B' in History, the
meaning or value of the 'mark' is different.
Scaling is the process which brings the
mark awarded by Examiner 'A' in regard to
Geometry scale and the mark awarded by
Examiner 'B' in regard to History scale, to
a common scale. Scaling is the exercise of
putting the marks which are the results of
different
scales
adopted
in
different
subjects by different examiners into a
common scale so as to permit comparison
of inter se merit. By this exercise, the raw
marks awarded by the examiner in different
subjects is converted to a 'score' on a
common scale by applying a statistical
formula. The 'raw marks' when converted
to a common scale are known as the 'scaled
marks'. Scaling process, whereby raw
marks in different subjects are adjusted to a
common scale, is a recognized method of
ensuring uniformity inter se among the
candidates who have taken examinations in
different subjects, as, for example, the Civil
Services Examination.

26. The Union Public Service
Commission ('UPSC' for short) conducts
the
largest
number
of
examinations
providing
choice
of
subjects.
When
assessing inter se merit, it takes recourse to
scaling only in civil service preliminary
examination where candidates have the
choice to opt for any one paper out of 23
optional papers and where the question
papers are of objective type and the answer
scripts are evaluated by computerized/
scanners. In regard to compulsory papers
which are of descriptive (conventional)
type, valuation is done manually and
scaling is not resorted to. Like UPSC, most
examining authorities appear to take the
view that moderation is the appropriate
method to bring about uniformity in
valuation
where
several
examiners
manually
evaluate
answer-scripts
of
descriptive/ conventional type question
402 INDIAN LAW REPORTS ALLAHABAD SERIES
papers in regard to same subject; and that
scaling should be resorted only where a
common merit list has to be prepared in
regard to candidates who have taken
examination
of
different
subjects,
in
pursuance of an option given to them.

27.
But
some
Examining
Authorities, like the Commission are of the
view that scaling can be used, not only
where there is a need to find a common
base across different subjects (that is
bringing the performance in different
subjects to a common scale), but also as an
alternative to moderation, to reduce
examiner variability (that is where different
examiners evaluate answer scripts relating
to the same subject).

30. We may at this stage refer to
the condition to be fulfilled, for 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 clear that scaling will be
useful and effective only if the distribution
of marks in the batch of answer scripts sent
to each examiner is approximately the
same as the distribution of marks in the
batch of answer scripts sent to every other
examiner.

30.2) A similar view is expressed
by J.P. Guilford & Benjamin Fruchter (in
their treatise 'Fundamental Statistics in
Psychology and Education' page 476-477).
They say that two 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 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 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 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."
30.3) V. Natarajan & K. Gunasekaran in
their treatise 'Scaling Techniques what,
why and how', have warned :

"If one studies the literature in
this field, he can find that there are a
number of methods available ranging from
simple to complex. 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 :

"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 arbitrary.
Each
has
its
own
advantages
and
disadvantages and useful for specific
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
403
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 Standard Scores will also be
'normally' distributed. Taking 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-`-vis
the other scores are valid only if the raw
score distribution can be assumed to
approximately
normally
distributed.
(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, 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.

45. We may now summarize the
position regarding scaling thus:

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

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

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

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

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

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

32. Thus ratio of the law is that marks
are assigned to answer script in different
papers in different subjects by different
examiners.
Scaling
process
uses
its
variability by bringing the marks in
different subjects to common scale by
applying a statistical formula which is :

Formula
Z=Overall Combined Mean + X-X-x-XX-MOverall
combined
SD
SD

Z = is the scaled Score
X = is the Raw marks (actual Marks)
SD = is the standard deviation.
M = is the mean of Raw Marks of the
Subject/ Examiner (as the case may be)

33. Thus the back drop in which law
in case of Sanjay Singh (Supra) has been
laid down is that if Rules do not permit
scaling then it cannot be adopted to.
Secondly where all the candidates taking
up
judicial
service
examination
are
appearing in common papers then as per
publication by A. Edwin Harper & Vidya
Sagar Misra (in 'Research on Examinations
404 INDIAN LAW REPORTS ALLAHABAD SERIES
in India) Subject variability being not
present scaling has no application and the
Supreme Court has held that moderation is
a better methodology.

34. In the present case it is evident
from discussion made in para-18 of the
judgment of Sanjay Since Case (Supra) that
PCS examination in which petitioners had
appeared is covered by PSC Procedures
Rules and there is provision in Rule 51 for
adoption of any method, device, or formula
which they consider proper for the purpose
so to eliminate variation in the marks
awarded to candidates at any examination
or interview.

35. In the present case it is admitted
that all the candidates did not appear in the
same papers and they had opted for
different subjects (Optionals), therefore,
Combined
State/
Upper
Subordinate
Services (PCS) Examination is different
from examination conducted for selection
of Civil Judge. Secondly unlike Civil Judge
selection where provisions of Judicial
Service Rules are applicable and there is a
specific provision in Rule 20 (3) as to
method of and the basis of preparation of
final list of selected candidates, this being
totally different from Rule 51 of PSC
Procedure Rule, ratio of law laid down in
case of Sanjay Singh (Supra) overruling the
judgment of SC Dixit (Supra) being in
specific context of Civil Judge (JD)
selection, which is governed by the Judicial
Service Rules, will not be helpful to the
petitioners
in
stricto
sensu.
Thus
necessarily the law laid-down in case of
Sanjay Singh (Supra) is on the issue of
inconsistency
between
Rules
for
appointment of Judicial Officers and the
Rules of the Public Service Commission.
The ratio is that in absence of anything to
the contrary, Rules of 2001 will have
supremacy over the Rules of Public Service
Commission.

36. This discussion leads to another
aspect, that petitioners, submission in
absence of any Rules or the Act, scaling
could not have been adopted, is not made
out. It is apparent that such contention
deserves to be rejected and is hereby
rejected in view of availability of Rule 51
as has been extracted in case of Sanjay
Singh (Supra).

37. A careful perusal of the
advertisement issued by the Commission
on 6.7.2018, Annexure-1 to the writ
petition reveals that under the head
"important instructions for candidates:"
"(15) scaling system will remain applicable
in the optional subjects of the main
(written)
examination",
makes
it
abundantly clear that petitioners were
aware of the fact, even before filling of
forms for preliminary examination, that
scaling system will be applicable in the
optional subjects of the Main Written
examination. Therefore, after they have
participated in the examination, demanding
change of the Rule and saying that adoption
of
scaling
is
arbitrary
amounts
to
demanding the change of Rules after the
game has began and the petitioners have
participated by appearing both in the
preliminary examination (successful) and
in the main examination unsuccessfully
(except for one successful candidate).

38. Thus now petitioners are estopped
from challenging the selection criteria as
has been held in case of Dhananjay Malik
Vs. State of Uttranchal, (2008) 4 SCC
171 wherein it has been held that "if
petitioners had any valid objection to the
terms and conditions of the advertisement
then they should have challenged the
10 All. Alok Kumar Singh & Ors. Vs. State of U.P. & Ors.
405
selection process without participating in
the same.

39. Similarly in case of Union of
India Vs. M. Chandra Shekharan, (1998)
3 SCC 694, it has been held that "Principle
of estoppel will apply to candidates who
appeared in the DDC after being made
aware of the procedure for promotion
before they sat for the written test and
appeared in the interview and such
candidates on not being selected, are not
permitted to turn around and contend that
the marks prescribed for interview and
confidential reports were disproportionately
high or that the authorities seeking fixed
minimum marks to be secured either at the
interview or in the evaluation of the
confidential report.

40. Similarly in case of Gurmeet Pal
Singh Vs. State of Punjab and another,
(2018) 7 SCC 260, it is held by the Supreme
Court that the advertisement was not
challanged by any of the appellants, it is a
well-settled principle of law that when a
candidate appears in an examination without
objection and is subsequently found to be not
successful a challenge to the process is
precluded. In a recent judgment in Ashok
Kumar Vs. State of Bihar, this principle has
been re-emphasised by referring to the earlier
judgments on this point starting from
Chandra Prakash Tiwari Vs. Shakuntala
Shukla. Thus, undoubtedly the appelants not
having challenged the advertisement at the
relevant point of time, cannot be permitted to
contend that having not made a mark in the
cut-off for the select list, something must be
done to somehow accommodate them.

41. Admittedly, petitioners participated
in the selection process and there is specific
mention in the scheme as was advertised by
the Commission in regard to scaling system,
therefore, after being unsuccessful petitioners
have no right to challenge the scaling system
and they are estopped from challenging the
same.

42. In case of Prashant Ramesh
Chakkarwar Vs. UPSC as reported in
(2013) 12 SCC 489, the Supreme Court has
held that "in absence of any evidence to
substantiate the allegations pertaining to
resort to scaling of marks, to deprive more
meritorious candidates of their legitimate
right to be selected, such contention rejected".
It has been held that mere fact that some
candidates
who
cleared
preliminary
examination
could
not
pass
main
examination, cannot lead to an inference that
method of moderation adopted by the
Commission was faulty.

43.