# Atul Kumar Dwivedi & Ors v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Bench:** Mrs. Sunita Agarwal, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-kumar-dwivedi-ors-v-state-of-u-p-ors-44694
- **Pages:** 35

## Headnote

A. Police Act, 1861- Sections 2, 46(2)(c),
46(3), U.P. Sub Inspector and Inspector
(Civil Police) Service (First Amendment)
Rules, 2015- Rules 8, 15(a), 15(b), 15(c),
15(d), 15(e), 15(f); Notifications dated
17.06.2016 and 28.06.2017- Petition
allowed while answering the following
questions:

1)
Whether
the
Selection
Board
transgressed
its
authority
to
alter/substitute the eligibility criteria
(50 % marks) mandated in Rule 15(b)
by normalized score to non-suit, all such
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2021
candidates from the recruitment process
who obtained 50% marks and above.

2) The scope of judicial review of the
Standardized
Equitable
percentile
Method adopted by the Selection Board.
 (Para 64)

B. It is the rule-making authority to
prescribe the mode of selection and
minimum
qualification
for
any
recruitment-The Courts and Tribunals
can neither prescribe the qualifications
nor entrench upon the powers of the
executive so long as the rule prescribing
the qualification are not violative of any
provisions of the Constitution, statute
and rules. 50% marks should not be read
to include the normalized percentile
score. (Para 74)

C.
The
rule
making
authority
upon
prescribing the eligibility criteria, conferred
limited power upon the Selection Board to
determine the detailed procedure of written
examination- Selection Board lacks inherent
jurisdiction to entrench upon the eligibility
criteria- It violated Rule 15(b) and exceeded
its authority and power by applying the
normalized score and not the raw marks to
determine the eligibility of the candidates
while preparing the select list. (Para 79, 92, 93,
94 to 103)

D. The word "marks" used in Sub- clause
(b) and (e) of Rule 15, has different
connotation- Sub- clause (b) refers to
'marks'
prescribed
by
the
rule
for
eligibility purpose, whereas, Sub-clause
(e) refers to marks/score obtained upon
evaluation upon normalization of the
marks referred to in Sub-clause (b) for
the purpose of making the select list in
the order of merit. (Para 88 & 89)

E. Percentile and Percentage are two
different concepts- The percentage score
reflects how well the student did in the
exam itself, the percentile score reflects
how well he did in comparison to other
students- Percentile rank would, therefore,
mean percentage of scores that fall at or
below a given score. (Para 108)

F. The appropriate method to bring
about uniformity in evaluation is left to
the
examining
authorities
and
not
subject to judicial review until it is
shown that the exercise of authority was
mala fide, violative of the statutory
provision or the method had resulted in
absurd results rendering the entire
selection manifestly arbitrary. (Para 119)

Petition for quashing of select list dated
28.02.2019,
derived
by
application
of
Standardized Equi-percentile Method.

Writ Petition allowed (E-4)

Precedent followed: -

## Text

_Characters 0–39,949 of 113,896. This is a partial read: ask again with offset=39949 for what follows._

2020 INDIAN LAW REPORTS ALLAHABAD SERIES
next following the year in which the
notice inviting applications is published;

Provided that the upper age limit
shall be higher by three years in case of
candidates belonging to Scheduled Castes
and Scheduled Tribes and such other
categories as may be notified by the
Government from time to time."

4. A plain reading of the aforesaid
Rule reveals that the maximum age limit
for appearing in the Higher Judicial
Service is 45 years for general category of
candidates as on the first day of January
next following the year in which the
notice inviting applications is published.
The said age limit has been relaxed by 3
years only for SC and ST candidates.

5. There is no notification of the
State Government providing any age
relaxation for any other category of
candidates much less the Ex-Serviceman.

6. Learned counsel for the petitioner
submits that the Ministry of Personnel
Public
Grievance
of
Pension
vide
notification dated 4th October 2012 has
provided for age relaxation for ExServiceman.

7. The aforesaid notification is not in
respect
any
service
of
the
State
Government. The Government competent
to notify the age relaxation under Rule 12
is the Government of U.P.

8. The definition of the Government
as provided in Rule 3(b) of the Rules
refers to the Government of U.P., and not
to the Union Government. Therefore,
notification
issued
by
the
Central
Government providing for age relaxation
to Ex-Serviceman is not applicable to the
recruitment made under the U.P. Higher
Judicial Service Rules, 1975.

9. In view of the aforesaid facts and
circumstances, we find no merit in the
petition and the same is dismissed.
----------
(2019)10ILR A 2020

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUNEET KUMAR, J.

Writ A No. 23733 of 2018 alongwith
Other Connected Cases

Atul Kumar Dwivedi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Deepak Kumar Jaiswal, Sri Ajay Singh
Yadav, Sri Prashant Mishra, Sri Tarun
Agrawal, Sri Venu Gopal.

Counsel for the Respondents:
C.S.C., Sri Hrithudhwaj Pratap Shahi, Sri M.M.
Sahai, Sri Samarath Singh, Sri Sankalp Narain.

A. Police Act, 1861- Sections 2, 46(2)(c),
46(3), U.P. Sub Inspector and Inspector
(Civil Police) Service (First Amendment)
Rules, 2015- Rules 8, 15(a), 15(b), 15(c),
15(d), 15(e), 15(f); Notifications dated
17.06.2016 and 28.06.2017- Petition
allowed while answering the following
questions:

1)
Whether
the
Selection
Board
transgressed
its
authority
to
alter/substitute the eligibility criteria
(50 % marks) mandated in Rule 15(b)
by normalized score to non-suit, all such
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2021
candidates from the recruitment process
who obtained 50% marks and above.

2) The scope of judicial review of the
Standardized
Equitable
percentile
Method adopted by the Selection Board.
 (Para 64)

B. It is the rule-making authority to
prescribe the mode of selection and
minimum
qualification
for
any
recruitment-The Courts and Tribunals
can neither prescribe the qualifications
nor entrench upon the powers of the
executive so long as the rule prescribing
the qualification are not violative of any
provisions of the Constitution, statute
and rules. 50% marks should not be read
to include the normalized percentile
score. (Para 74)

C.
The
rule
making
authority
upon
prescribing the eligibility criteria, conferred
limited power upon the Selection Board to
determine the detailed procedure of written
examination- Selection Board lacks inherent
jurisdiction to entrench upon the eligibility
criteria- It violated Rule 15(b) and exceeded
its authority and power by applying the
normalized score and not the raw marks to
determine the eligibility of the candidates
while preparing the select list. (Para 79, 92, 93,
94 to 103)

D. The word "marks" used in Sub- clause
(b) and (e) of Rule 15, has different
connotation- Sub- clause (b) refers to
'marks'
prescribed
by
the
rule
for
eligibility purpose, whereas, Sub-clause
(e) refers to marks/score obtained upon
evaluation upon normalization of the
marks referred to in Sub-clause (b) for
the purpose of making the select list in
the order of merit. (Para 88 & 89)

E. Percentile and Percentage are two
different concepts- The percentage score
reflects how well the student did in the
exam itself, the percentile score reflects
how well he did in comparison to other
students- Percentile rank would, therefore,
mean percentage of scores that fall at or
below a given score. (Para 108)

F. The appropriate method to bring
about uniformity in evaluation is left to
the
examining
authorities
and
not
subject to judicial review until it is
shown that the exercise of authority was
mala fide, violative of the statutory
provision or the method had resulted in
absurd results rendering the entire
selection manifestly arbitrary. (Para 119)

Petition for quashing of select list dated
28.02.2019,
derived
by
application
of
Standardized Equi-percentile Method.

Writ Petition allowed (E-4)

Precedent followed: -

1. P.U. Joshi & ors. Vs Accountant General,
Allahabad & ors., (2003) 2 SCC 632 (Para 75)
2. Chandigarh Admin. Vs Usha Kheterpal Waie
& ors., (2011) 9 SCC 645 (Para 76)
3. Mahinder Kumar & ors. Vs High Court of M.P.,
(2013) 11 SCC 87 (Para 32, 35, 45, 48, 80)
4. Sanjay Singh & anr. Vs P.S.C., Allahabad &
anr., (2007) 3 SCC 720 (Para 17, 18, 51, 90,
91, 112, 115, 116)
5. Umesh Chandra Shukla Vs UOI & ors.,
(1985) 3 SCC 721 (Para 58, 94, 100)
6. Durgacharan Misra Vs St. of Orissa & ors.,
(1987) AIR 2267 (Para 97)
7. Ramachandra Iyer & ors. Vs UOI & ors.,
(1984) 2 SCC 141 (Para 98)
8. B.S. Yadav & ors. Vs St. of Haryana & ors.,
(1981) AIR 561 (Para 99)
9. Dr. Krushna Chandra Sahu & ors. Vs St. of
Orissa & ors., AIR 1996 SC 352 (Para 58, 101)
10. Sant Ram Vs St. of Raj., AIR 1967 SC 1910
(Para 102)
11. Sunil Kumar & ors. Vs B.P.S.C. & ors.,
(2016) 2 SCC 495 (Para 45, 51, 115)
2022 INDIAN LAW REPORTS ALLAHABAD SERIES
12. St. of Kerala Vs Kumari T.P. Roshana &
anr., (1979) 1 SCC 572 (Para 20)
13. Sarita Naushad Vs R.P.S.C., (2009) SCC
Online Raj. 4616 (Para 30)
14. Rajasthan P.S.C. Vs Balveer Singh Jat &
ors., (2015) 13 SCC 620 (Para 31)
15. U.P.S.C. Vs S. Thiagarjan & ors., (2007) 9
SCC 548 (Para 37, 53)
16. St. of M.P. Vs Sanjay Kumar Pathak & ors.,
(2008) 1 SCC 456 (Para 37, 53)
17. Disha Panchal & ors. Vs UOI, The
Secretary & ors., AIR 2018 SC 2824 (Para 45)
18. Paradise Printers & ors. Vs UT of
Chandigarh & anr., AIR 1988 SC 354 (Para 50)
19. D. Saibaba Vs BCI & anr., (2003) 6 SCC
186 (Para 50)
20. Tirath Singh Vs Bachittar Singh & ors., AIR
1995 SC 830 (Para 50)
21. Rakesh Wadhawan & ors. Vs Jagdamba
Industrial Corpn. & ors, (2002) 5 SCC 440
(Para 50)
22. Rutvj Waze & anr. Vs UOI & ors., (2015)
SCC Online (MP) 3482 (Para 51)
23. Man Singh Vs Commissioner, Garhwal
Mandal Pauri & ors, (2009) 11 SCC 448 (Para
54)
24. Motilal Padampat Sugar Mills Vs St. of
U.P., (1979) 3 SCC 409 (Para 59)
25. Veerendra Kumar Gautam & ors Vs Karuna
Nidhan Upadhayay, (2016) 4 SCC 18 (Para 60)
26. Karuna Nidhan Upadhya & anr Vs St. of
U.P. & ors., (2012) (5) ADJ 182 (Para 60)
27. Raj Kumar & ors. Vs. Shakti Raj & ors.,
(1997) 9 SCC 527 (Para 121)
Precedent distinguished: -

1. K.H. Siraj Vs High Court of Kerala & ors.,
(2006) 6 SCC 395 (Para 52)
2. D. Saroj Kumari Vs R. Helen Thilakom &
ors., (2017) 9 SCC 478 (Para 52, 120)
3. Ashok Kumar & anr. Vs St. of U.P. & ors.,
(2017) 4 SCC 357 (Para 52)
4. UOI & ors.Vs.C. Girija & ors., (2019) SCC
Online SC 187 (Para 52)
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. & Hon'ble Suneet Kumar, J.)

1. Heard Sri Radha Kant Ojha
Senior Advocate assisted by Sri Shivendu
Ojha, Sri Ashok Khare Senior Advocate
assisted by Sri Siddharth Khare, Sri
Shashi Nandan Senior Advocate assisted
by Sri Udayan Nandan, Sri Tarun
Agrawal, Sri Satyendra Tripathi and Ms.
Shreya Gupta, learned counsels for the
petitioners at length. All other counsels
appearing for the petitioners in the writ
petitions tagged with this bunch have
adopted the arguments extended by the
above noted counsels.

2. Sri Manish Goyal learned
Additional Advocate General assisted by
Sri Vikram Bahadur Yadav learned
Standing Counsel has been heard on
behalf of the State-respondents and the
U.P. Police Recruitment and Promotion
Board1. Sri Sankalp Narain learned
Advocate has extended his arguments on
behalf of the selected candidates, privaterespondent Nos.4 to 23, in the leading
writ petition.

3. These writ petitions have been
filed by the candidates who had obtained
50% marks in each section/subject in the
online
written
examination
held
in
multiple shifts between 12.12.2017 and
23.12.2017.
The
facts
relevant
to
appreciate the controversy at hands are
that a notification dated 17.06.2016 was
issued by the third respondent namely the
Additional Secretary (Recruitment), Uttar
Pradesh Police Recruitment & Promotion
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2023
Board,
Lucknow
(Selection
Board)
advertising 2707 posts of Sub Inspector
(Civil
Police),
Platoon
Commander
P.A.C. and Fire Brigade Second Officer
in the pay scale/pay band/9300-34800 and
grade pay Rs. 4200. The recruitment was
to be made on the basis of online written
examination of one question paper (total
400
marks)
comprising
of
four
sections/subjects of 100 marks each,
named as:-

Sl No.
Subjects
Maximum
marks
1.
General
Hindi
100 marks
2.
Basic
Law/Constit
ution/Gener
al
Knowledge
100 marks
3.
Numerical
and Mental
Ability Test
100 marks
4.
Mental
Aptitude
Test/I.Q.
Test/Reason
ing.
100 marks

4. Before conducting the written
examination, in order to provide method
and modalities of the selection process, a
notification dated 28.06.2017 was issued
by the Selection Board in continuation of
the
advertisement
notification
dated
17.06.2016. The aforesaid notification
provides that online applications were
invited for filling up total 2707 vacancies
of Sub Inspector, Civil Police (Male and
Female), Platoon Commander and Fire
Service Second Officer whereunder total
6,30,926 applications had been received.
Looking at the huge number of applicants, the
Board
had
resolved
to
hold
written
examination in multiple shifts which would
require preparation of different sets of
examination papers. As there was possibility
of variation in the difficulty level of the
questions papers, it had decided that for
preparation of merit list of successful
candidates, the marks obtained by the
candidate papers/subjects wise would be
normalized by using "Standardized Equipercentile Method" in the same line as
adopted in M.A.H, M.B.A/M.M.S, C.E.T
2015 examination. The notification further
states that the questions papers would be of
160 multiple choice questions carrying total
400 marks. Each section/subject comprised of
40 questions carrying maximum 100 marks;
2.50 marks allocated for each right answer.
There was no negative marking for the wrong
answer. It was further notified that the
candidates who failed to obtain 50% marks in
each subject would not be eligible for
recruitment.

5. The recruitment to the posts in
question is governed by the U.P. Sub
Inspector and Inspector (Civil Police)
Service (First Amendment) Rules' 20152,
whereunder Rule 15 provides for detail
procedure for direct recruitment to the post
of Sub Inspector. The said rules have been
framed in exercise of powers under clause
(c) of sub-section (2) of Section 46 read
with sub-section (3) of the said section and
Section 2 of the Police Act' 1861 by the
Governor
to
regulate
the
selection,
promotion, training, appointment and other
service conditions such as seniority and
confirmation etc. of Sub Inspectors and
Inspectors of Civil Police in U.P. Police
Force notified on August 19, 2015 and had
been amended with effect from the 3rd
December, 2015, the date of publication of
the First amendment Rules' 2015.
2024 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On the factual aspects of the
selection, it is contended by the learned
Advocates for the petitioners that total
approx 11000 and odd candidates were
called to participate in the "Physical
Standard Test" and "Physical Efficiency
Test" as per Rule 15 (c) and 15 (d) of the
Recruitment Rues. They include all those
candidates who had obtained 50% or
more marks (Raw marks or actual marks)
in the written examination and also those
who had obtained 50% or more marks as
per "normalized score", (the marks
calculated by the Selection Board by
using
"Standardized
Equi-percentile
Method"). All the petitioners herein stated
to have cleared both the subsequent stages
of recruitment of "Physical Standard Test"
as per clause (c) of Rule' 15 and Physical
Efficiency Test {(as per Rule 15 (d)} and
had obtained 50% or more than the
actual/raw marks in each subject of the
question paper. It was further stated that
they had been excluded from the final
select list i.e. inter-se merit list of the
candidates
selected
for
appointment
prepared under Rule 15 (e) of the
Recruitment Rules, on the ground that
they obtained less than 50% "normalized
score" derived by using Standardized
Equi-percentile Method.

7. As per the "Statistics" provided
by both the counsels for the petitioners
and the selection Board, out of total
11,741 candidates notified to participate
in the subsequent stages of selection i.e.
"scrutiny of document and Physical
Standard Test" and "Physical Efficiency
Test", 5461 candidates were those who
had obtained 50% of actual/raw marks in
the
written
examination
and
5713
candidates were those who obtained 50%
"normalized score". Total 8877 candidates
had qualified all the stages, which
included 4334 candidates who obtained
50% or more actual/raw marks and 4543
candidates who obtained 50% or more
normalized score. Out of 4543 candidates
who had obtained 50% normalized score,
3457 candidates had been selected and
sent for training. We are also informed
that all selected candidates are under
going training and as on date no-one has
been appointed.

8. The notification declaring final
result was displayed on 28.02.2019 on the
website of the Board which comprised of
8 lists, detail of which is enumerated as
under:-

"(i) List 1- List of 2181 selected
candidates for the post of Sub Inspector
(Civil Police), Platoon Commander PAC
and Fireman Second Officer.

(ii) List 2- A joint merit list of
2181
selected
candidates
for
Sub
Inspector (Police), Platoon Commander
PAC and Fireman Second Officer.

(iii) List 3- A joint merit list of
2181
selected
candidates
for
Sub
Inspector
(Civil
Police),
Platoon
Commander PAC and Fireman - Second
Officer categories.

(iv) List 4- A list of 1943
candidates selected for Sub Inspector
(Civil Police).

(v) List 5 - 162 candidate
selected for Platoon Commander PAC.

(vi) List 6- List of 76 officers
selected for Fireman second officer.

(vii) List 7- List of non selected
candidates.

(viii) List 8 - List of candidates
declared unsuccessful in the written
examination."

9. The petitioners herein have been
included in the List 8 i.e. the list of
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2025
candidates
who
had
been
declared
unsuccessful in the written examination.
At that stage, writ petitions were filed by
the candidates who had been placed in the
List 8 seeking for quashing of the said list
as also the notification dated 28.06.2017
issued by the Selection Board notifying
that the Selection Board shall adopt
normalization procedure in preparation of
the merit list. In some of the writ petitions
in this bunch, the entire final select list
dated 28.02.2019 is also subject matter of
challenge.

10. The leading Writ Petition
No.23733 of 2018 was, however, filed in
the month of October 2018 before
declaration of the final result wherein the
grievances of the petitioners initially was
that the Selection Board had wrongly
applied the normalization process i.e.
Standardized Equi-percentile Method by
issuing call letters to all those candidates
who had not obtained 50% or more
(Raw/Actual score) in each four subjects
and scored 50% (normalized marks
derived by applying Standardized Equipercentile Method) to appear in the
"Physical Standard/Efficiency Test" held
in the month of June and July 2018.

11. It appears that some of the
petitioners before the Lucknow Bench
had approached the Supreme Court in
(Manish Kumar Yadav Vs. State of
U.P. & others)3 challenging the order of
the Division Bench dated 27.05.2019
leaving it open for the Selection Board to
proceed with the appointment as per the
final select list dated 28.02.2019, subject
to
the
condition
that
the
selected
candidates shall not claim any lien or
right over the appointment and their
appointment shall be subject to the final
outcome of the pending writ petition,
wherein
the
following
order
dated
12.06.2019 was passed:-

"We do not find any cogent
grounds to interfere with the order of the
Division Bench impugned. The selected
candidates have given an undertaking
that they shall not claim any lien or right
over the appointments which shall be
subject to the result of the writ petition.
The
special
leave
petition
is
not
entertained.

We, however, request the Chief
Justice of the High Court to constitute a
special Division Bench to expeditiously
hear the writ petition on day-to-day basis
without
granting
unnecessary
adjournments and to dispose of the writ
petition as expeditiously as possible
preferably within thirty days form the date
of constitution of the Bench.

The special leave petition and
pending applications are accordingly
disposed of."

12. In pursuance of the said order, on the
application moved by the learned Advocates
appearing for the petitioners dated 07.07.2019,
this Special Division Bench has been constituted
by Hon'ble the Chief Justice by the order dated
15.07.2019. The matter was placed before this
Bench on 02.08.2019 with the office report
dated 01.08.2019 alongwith all connected writ
petitions pending at Allahabad High Court. The
arguments of learned Advocates for the
petitioners commenced on the said date i.e. on
02.08.2019 itself, but could not be concluded
and as such the matter was fixed for 06.08.2019
in the additional cause list. Further hearing was
resumed on 19.08.2019 and continued on dayto-day basis uptil 22.08.2019.

13. The arguments of learned
Additional Advocate General was heard
and concluded on 26.08.2019 and the
2026 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel
for
the
private
respondent
commenced his arguments on that date
itself.
The
matter
was
posted
on
28.08.2019 for further hearing, but could
not be taken uptill 04.09.2019 because of
the strike observed by the lawyers of this
Court. The arguments of Sri Sankalp
Narain learned Advocate for the privaterespondent concluded today. No other
counsel had appeared on behalf of the
private-respondents
in
any
of
the
connected matters.

14. To summarise the arguments of
the learned counsels for both sides, Sri
R.K. Ojha learned Senior Advocate
appearing for the petitioners submits that
the process of normalization adopted by
the respondents for preparation of the
eligibility list is not contemplated in the
Recruitment Rules. Even the Selection
Board while issuing notification dated
17.06.2016 in Clause 4.1 and 4.2
thereunder under provided that selection
would be made on the criteria of 50%
marks being the qualifying marks in the
written examination and select list calling
the candidates for participation in the
process of scrutiny of documents and
Physical Standard test would be drawn on
the said criteria.

15. In the notification dated
28.06.2017 (which was issued in Hindi),
it was categorically provided that the
candidates who did not attain 50% marks
would be disqualified and would not be
treated
as
eligible
candidates.
In
paragraph no.'4' of the said notification it
was provided that normalisation of the
total marks obtained by the candidates
taking the question paper as one unit
would be made by applying Equi
Percentile method for the purpose of
drawing inter-se merit of the selected
candidates. The Selection Board had
committed illegality in drawing the final
merit list by exclusion of all those
candidates who did not attain 50%
normalized marks (by applying the Equipercentile Method) in each subject though
they attained 50% actual/raw marks in
each four subjects of the question paper
for written examination and, thus, were
qualified to be included in the list of
eligible candidates for participation in the
further stage of "Physical test and scrutiny
of document" as per the Rule 15 (c) of the
Recruitment
Rules.
The
criteria
of
selection had been changed during the
course of the selection process which was
not permissible in view of the settled legal
proposition that rules of the game cannot
be changed during mid of the game.

16. Sri Ashok Khare learned Senior
Advocate for the petitioners adding to the
above contentions submits that minimum
qualifying marks has been provided in the
statute. The Equi-percentile Method only
denotes inter-se ranking of the candidates
and
cannot
be
confused
with
the
"qualifying marks" to be attained by a
candidate for being included within the
zone of consideration. The question paper
consisted of multiple-choice questions to
be evaluated by the computerized scanner.
There was no examiner variability nor
there was any optional paper in the main
written
examination.
The
syllabus
displayed by the Board on its Website
appended
as
Schedule-I
to
the
advertisement
notification
dated
17.06.2016 was uniform for preparation
of the question papers comprising of all
compulsory subjects. The question papers
were set up from the various topics
provided in the common syllabus for the
subject Hindi, Legal/General Knowledge,
Numerical/Mental
Ability,
I.Q
and
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2027
reasoning. There was, therefore, no
possibility of variation in the difficulty
level of the question papers and, even if
this was so, moderation of question
papers itself was required to be done by
the Selection Board. Looking to the
pattern of examination which was Online
test of multiple-choice questions, it cannot
be said that the candidates of different
batches were required to undertake the
examination at different difficulty levels.
In-fact the syllabus of the examination
provided by the Selection Board sets
common difficulty level of the questions
from the entire syllabus uniformly for all
candidates of different batches.

17. Placing three different sets of
questions
papers
filed
with
the
Compilation provided by the learned
Senior Advocate, it is contended that
there was no justification for adoption of
normalization process (Equi-percentile
Method) for preparation of list of "eligible
candidates". The method adopted by the
Selection Board was contrary to the
Recruitment Rules which provides the
entire scheme for evaluation of the
question papers of written examination
for the purpose of preparation of the merit
list. Reliance has been placed upon the
judgement of the Supreme Court in
Sanjay Singh and another. Vs. U.P.
Public Service Commission, Allahabad
and another4, to submit that the "scaling
system" adopted by the Selection Board
by normalization of actual/raw marks
obtained by the candidates in the written
examination was not permitted being
contrary to scheme of the Recruitment
Rules.

18. It is pointed out that the
Supreme Court while answering the
question no.(iii) in Sanjay Singh2 had
held that the "scaling score" or "scaling
mark" cannot be considered to be "marks
awarded to the candidates in the written
examination" and, thus, concluded that
scaling violated the recruitment rules
therein.

19. The Recruitment Rules provided
for preparation of merit list on the basis of
"marks awarded to the candidates in the
written examination" which can only be read
as "percentage of marks" awarded on the
answer scripts evaluated by computerized
scanner.
Appendix-'3'
which
provided
syllabus for the written examination and
mode & method thereof, attached to the
original Recruitment Rule' 2015 had been
deleted w.e.f. 03.11.2015 with the First
amendment of the Recruitment Rules, but the
legislature consciously has retained Rule 15
(b) of the Recruitment Rules providing
maximum marks in each of the four subjects
of the written examination and the minimum
passing percentage. The legislative intent to
provide the qualifying criteria is explicitly
clear.
Exclusion
from
the
zone
of
consideration of the candidates who had
scored 50% or more marks in each of the
four subjects of the question papers
(qualified under the rules), therefore, was not
permitted.

20. Reliance is placed on the
judgement of the Supreme Court in State
of Kerala Vs. Kumari T.P. Roshana &
another5 to submit that it was held
therein that minor differences in the
marks obtained by the candidates in the
qualifying examination conducted by
different
Universities
with
different
standard, question papers and set of
examiners are inconsequential.

21. Sri Tarun Agrawal learned
Counsel urged that the percentage is a
2028 INDIAN LAW REPORTS ALLAHABAD SERIES
measure of the absolute/raw marks
obtained by a candidate on a scale of 100
which is calculated by the formula=
(marks obtained upon/total marks) x
100. Whereas 'percentile' is the relative
rank of the candidate within his group
which can be seen from the formula=
(total number of students)-of the
candidates
rank)/(total
number
of
students-1).

22. "Hundred (100) percentile"
means the candidate is above 99%
candidates who had appeared in the test in
the same batch or in other words it can be
understood
as
that
there
are
0%
candidates above him in his batch.
Similarly, 90% percentile means the
candidate is above 90% candidates or
10% candidates are above him. The
'percentile' thus, denotes the relative
standing of a candidate vis-a-vis other
candidates in his group or batch.

23.

The
'Standardized
Equipercentile Method' which is applied by a
standard
formula
{"Y=Y1+((Y2Y1))/((X2-X1))x(X-X1)"},
has
been
derived to give level playing field to the
candidates of different group or batches,
looking to the difference in the standard
of papers, for drawing the inter-se merit
of all candidates for final selection. A
batch
where
maximum
number
of
students undertook examination if taken
as the 'reference batch' or 'base batch'; by
using both 'marks' and 'percentile' of the
candidates
of
'reference
batch'
in
comparison to the candidates of other
batches the normalized score i.e. value of
'Y' of candidates of those batches is
obtained.

24. The values being used in the
aforesaid formula are:-

- Y1= marks corresponding to
immediate lower percentile of ref.batch

- Y2= marks corresponding to
immediate upper percentile of ref. batch

-
X2=
immediate
upper
percentile of ref. batch

-
X1=
immediate
lower
percentile of ref. batch

- X= percentile of the candidate
of the target batch

- Y= normalized score of the
candidate of the target batch

25. The value of "Y", i.e. 'normalized
mark', thus, only denotes the position or
placement or ranking of the candidates of
different batches in relation to the
'reference batch' or 'base batch', as 'Y-1'
and 'Y-2' in the formula are the marks
corresponding to the immediate 'lower
and upper percentile' of the 'reference
batch' and 'X-1' and 'X-2' are immediate
'lower and upper percentile' of 'reference
batch'; whereas 'X' is the percentile of the
candidate concerned whose marks are to
be normalized by finding the value of
"Y".

26. It is contended by the learned
Counsel that Equi-percentile Method
based on the doctrine of level playing
field, by using both 'raw marks' and
'percentile' of the candidates of the
reference batch and 'percentile' of the
candidates of other batches for finding the
value of "Y" (normalized marks), places
the
candidates
of
other
batches
somewhere in between the candidates of
the reference batch so as to give them
their position in the common inter-se
merit list. The 'normalized marks' are,
thus, used for the purpose of preparation
of inter-se merit of the candidates
appearing
in
multiple
batches
with
different sets of question papers in one
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2029
competitive
examination,
tested
on
different difficulty level.

27. From the prospectus of Medical
Entrance Test conducted by AIIMS, New
Delhi, it is demonstrated that it was
notified therein for stage 2, the candidate
who had obtained "50% percentile" or
above in the written examination (at stage
no.1) would be called. The prospectus of
AIIMS, New Delhi, January' 2018 of a
fellowship programme, has been placed
before us to submit that 'percentile' is the
score based on relative performance of the
candidates
who
appeared
in
the
examination.

28. It is further contended that even
the process of normalization as adopted in
M.A.H, M.B.A, M.M.S, CET 2015 which
has been taken as a model for adopting
normalization in the examination-inquestion, provides that Equi-percentile
Method would be applied at the time of
preparation of merit list for admission.

29. It is contended that the eligibility
list as per Rule 15 (b) can only be
prepared on the basis of raw/actual marks
of
the
candidates
in
the
written
examination. As there is no indication in
the rule that normalized marks will be
used as "qualifying marks" to determine
"eligibility
of
candidates",
there
is
inherent flaw in the method adopted by
the respondent. The normalized marks
cannot be treated either as percentile (in
their own batch) or actual or raw marks of
the candidates.

30. By taking clue from a judgement
of the High Court of Rajasthan in Sarita
Naushad Vs. R.P.S.C6, it is contended
that in the instant matter, scaling formula
has resulted in unjust, unreasonable,
irrational and arbitrary increase and
decrease of marks to the detriment of the
petitioners vis-a-vis persons who had
been selected on the basis of normalized
marks. The candidates who were not
qualified as per the actual marks obtained
were not entitled to be declared qualified
as per the scaled marks or normalized
marks.

31. The challenge to the said
judgement was turned down by the
Supreme Court in Rajasthan Public
Service Commission Vs. Balveer Singh
Jat & others7, noticing that the method
of scaling for the purpose of assessment
of answer sheets adopted by Rajasthan
Public Service Commission for calling the
candidates for interview was bad.

32. In order to substantiate his above
submissions, Sri Agrawal has placed
judgement of the Supreme Court in
Mahinder Kumar & others Vs. High
Court of Madhya Pradesh8. (Emphasis
was laid to paragraphs nos.13 to 17, 19 to
24, 40, 50, 51, 53 & 55). It is contended
that the normalized marks were not the
basis therein for determining eligibility of
the candidates to participate in the vivavoce or interview in the scheme of the
Recruitment
Rules
namely
Madhya
Pradesh Uchchtar Nyayik Seva (Bharti
Tatha Seva Sharten) Rules' 1994 amended
in the year 2005.

33. Sri Shashi Nandan learned
Senior
Counsel
appearing
for
the
petitioners in one of the connected writ
petition, however, vehemently contends
that under the scheme of the Recruitment
Rules, 15(b) & (e), there was no room for
any deviation in the procedure of
evaluation
of
performance
of
the
candidate in the written examination. The
2030 INDIAN LAW REPORTS ALLAHABAD SERIES
role of the Selection Board was specified
as to how it will prepare the select list of
qualified candidates. It was absolutely
beyond the jurisdiction of the Selection
Board to prescribe or add any procedure
for selection. The first part of Rule 15(b)
is specific with regard to the written
examination, the type of question paper,
the maximum number of marks assigned
to each subject or section of the question
papers and the requirement that the
candidates have to obtain '50% marks' in
each of the four subjects for being eligible
for recruitment. Only option given to the
Selection Board was to decide the
syllabus of the examination and the mode
and
manner
in
which
the
written
examination was to be conducted. The
words used in the latter part of clause (b)
of Rule 15 "detail procedure for written
examination shall be determined by the
Selection Board" and will be displayed on
its website does not include the procedure
for evaluation for selection. Even Rule
15(e) states that final merit list shall be
determined on the basis of marks obtained
by each of the candidates in the written
examination under clause (b) of the said
rule. It was, therefore, not open for the
Selection
Board
to
adopt
any
normalization process or Equi-percentile
Method at all even to draw the final merit
list. The process of selection of candidates
being enumerated elaborately in the rules
will also include the procedure for
evaluation
of
the
performance
of
candidates.

34. For the aforesaid, the whole
procedure adopted by the Selection Board
in preparation of final select list dated
28.02.2019 is in contravention of the
mandatory
requirement
of
the
Recruitment Rules. The notification dated
28.06.2017 displayed by the Board on its
website is, therefore, liable to be quashed
being in violation of the recruitment rules.

35.

Learned
Senior
Counsel
referring to Mahinder Kumar7 submits
that the said decision fortifies his
argument that once the procedure for
selection is determined in the Rule, it is
not open to the selecting body or agency
to deviate from the procedure. The
normalization process upheld by the
Supreme Court therein was in view of the
rules prevailing, wherein the High Court
was empowered to formulate its own
procedure, which is not so in the present
case.

36.

Even
the
brochure
of
advertisement
notification
dated
17.06.2016 specified in clause 4-(i) that
the candidates not attaining 50% marks in
each subject would not be eligible for
recruitment. After the notification of the
vacancies
providing
conditions
of
selection in terms of the rule, it was not
open for the Selection Board to adopt any
other method for preparation of the merit
list.

37. Sri Satendra Tirpathi learned
Advocate for the petitioners adopting the
arguments of Sri Ashok Khare and Sri
R.K. Ojha learned Senior Counsel urged
that the respondent have misconstrued the
normalized marks as percentage, to decide
cut-off marks for preparation of list of
qualifying candidates. Even otherwise, as
per the Selection Board's notification
dated 28.06.2017, the normalized marks
could be worked out only on the total
marks obtained by a candidate in the
question papers taken as a unit and not for
each
section/subject.
The
petitioners
could not be declared failed for having
not obtained normalized marks in anyone
2 All. Atul Kumar Dwivedi & Ors. Vs State of U.P. & Ors.
2031
of the four sections. Reliance is placed on
the judgement of the Supreme Court in
U.P.S.C Vs. S. Thiagarjan & others9 and
State of Madhya Pradesh and others vs.
Sanjay Kumar Pathak and others10 to
submit that meritorious candidates cannot
be left out from the select list and the
selection process marred by arbitrariness
and unfairness cannot be allowed to stand.
The selected candidates do not have any
legal right merely for the fact that their
names were found in the select list as no
indefeasible right for appointment accrue in
their favour.

38. Ms. Shreya Gupta learned counsel
for the petitioners assailing the notification
dated 28.03.2019 for applying Standardized
Equi-percentile Method for normalization of
marks obtained by the candidates in the
written examination submit that the said
method was not in consonance of the
Recruitment Rules. The Selection Board's
notification dated 28.03.2019 deviating from
the procedure of selection is in transgression
of its delegated power under the Recruitment
Rules. It is settled that if a particular field is
occupied by a statutory legislation, there is no
scope for any addition or subtraction by any
subordinate legislation.

39. She further proceeded to
challenge the validity of clause 15 (f) of
the first Amendment Rules' 2015 which
provides that the candidates whose names
are in the select list prepared as clause (e)
of the Rule 15, if found unsuccessful in
the medical examination conducted by a
Board under the Rules shall be declared
unfit by the appointing authority, and the
vacancies occurred shall be carried
forward for next selection.

40. Contention is that the medical
examination of the selected candidates is
only one of the four stages of selection;
first stage being written examination
under Rule 15(b); second scrutiny of
documents and Physical Standard Test as
per clause (c) of Rule 15; third Physical
Efficiency Test as per clause (d) of Rule
15 and fourth and last stage is medical test
as per clause (f) of Rule 15. Till medical
test is conducted, the process of selection
is not over and as such the vacancy
occurred on account of any candidate
having been found unsuccessful in the
medical test will be the existing vacancy
of the same selection. The principle of
carry forward of the vacancy for the next
recruitment year can only be related to the
vacancies pertaining to Scheduled Caste,
Scheduled Tribes and Women, that too
due
to
unavailability
of
suitable
candidates of that category.

41. The State of U.P. had given an
undertaking to the Supreme Court in Manish
Kumar Yadav1 on an affidavit that all
existing vacancies to the post of Constable
and Sub Inspector of police will be filled up
within the time lines given therein and in case
of breach of the same, the officers of the State
would be personally liable. As many as 821
vacancies in total are proposed to be carried
forward which include Scheduled Caste,
Scheduled Tribes & women and also include
vacancies occurred on account of exclusion of
those candidates who could not qualify the
medical test. It is thus, vehemently contended
that the vacancies occurred on account of
exclusion of the candidates failing in the
medical test, from the final select list under
Clause (e) of Rule 15, are to be filled by
placement of the candidates from list-7 (of
non-selected candidates) by bringing down
the cut off marks.

42. With the above contentions, the
submissions
of
learned
Advocates
2032 INDIAN LAW REPORTS ALLAHABAD SERIES
appearing for the petitioners have been
concluded. All other Advocates appearing
for the petitioners in this bunch have
either adopted the arguments noted above
or reiterated the same. We, therefore, need
not burden this judgement with their
arguments separately.

43. Sri Manish Goyal learned
Additional Advocate General on behalf of
the State-respondents and the Selection
Board, in reply to the arguments advanced
by the learned counsels for the petitioners
and to justify the process of normalization
adopted by the Selection Board made the
following submissions:-

44. The first submission is that the
normalization is an universally approved
standard method applicable in case of
variable difficulty level of question papers
and, therefore, application thereof was well
within power of evaluation of the Selection
Board.
Placing
the
affidavit
dated
12.04.2019 filed on behalf of the respondent
Nos.2 & 3, it is contended that normalized
marks "Y" were derived after applying the
Equi Percentile formula on fraction of 100
and as such denote percentage and not
percentile. The said formula was worked
out by the agency which had conducted the
examination and prepared result for the
Selection Board.