# PRANAV VERMA & OTHERS v. THE REGISTRAR GENERAL OF THE HIGH COURT OF

- **Citation:** [2019] 15 S.C.R. 43
- **Court:** Supreme Court of India
- **Decided:** 2019-12-13
- **Bench:** S. A. Bobde, B. R. Gavai, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pranav-verma-others-v-the-registrar-general-of-the-high-court-of-33388
- **Pages:** 25

## Headnote

Service Law: Selection - Interference with selection process
- Main (Written) Examination of Civil Judge wherein total 1195
candidates appeared and only 9 cleared the exam - Unsuccessful
candidates challenging the entire selection process and evaluation
method adopted therein and sought quashing of the result and reevaluation by independent expert Committee - Held: No
discriminatory or malafide practice was undertaken while
conducting the exam or its following processes - Officials of the
High Court ensured adequate security measures - Procedure of
evaluation was 'uniform' - Every candidate's answers were marked
on same parameters by the same examiner - There was no examiner
variability but marking and evaluation method was strict but it was
so for everyone, thus, the option of moderation is applied -
Alternative II of the Report by Justice Sikri is adopted, awarding
20 marks in Civil Law I and 10 marks in Civil law II - Prayer for reevaluation by an Independent Expert Committee cannot be accepted
- Also petitioners' plea that marks of the Main Exam should be
disclosed before conducting viva-voce, cannot be accepted since
that would invite bias or favourtism affecting the impartial
evaluation of a candidate in viva-voce - Thus, respondents directed
to award 20 grace marks in Civil Law-I paper and 10 grace marks
in Civil Law-II paper to all the candidates - Issuance of direction
to prepare fresh results of the Main (Written) Examination of Civil
Judge and complete the selection process within the stipulated
period - Constitution of India - Art. 32 - Judicial service.
Partly allowing the Writ Petitions, the Court
HELD: 1.1 In the instant case, Justice Sikri critically
examined the selection process as well as the evaluation method
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and it is explicit from his report that the procedure of evaluation
was 'uniform'. Evaluation done by multiple evaluators i.e. one
Evaluator examining and marking one question in all the marksheets, ensures uniformity and prevents chance grading. Every
candidate's answers are marked on same parameters by the same
examiner. There can possibly be no other better method to ensure
uniformity in evaluation. The petitioners have stated that as per
the information received via RTI no model 'answer key' was
present. It gives more credance to the afore-stated method of
evaluation as no model 'answer key' ought to be devised for the
Main Exam, the purpose whereof is not to just assess the
knowledge of candidates but also to evaluate their analytical
ability. In the instant case, there was no Examiner Variability,
therefore, Justice Sikri very aptly remarked that, "this was well
intended move to attain uniformity in evaluation". This method
ensures equal level play field for all candidates. The only setback
was lack of holistic view and lack of realistic expectations in the
examiner's mind, for which there are adequate remedies.
[Para 14][60-G-H; 61-A-C]
1.2 The marking criteria and evaluation method was strict
but it was so for everyone. This was may be for the reason that
one Evaluator checked one answer in each script and in this
manner the entire lot of scripts were marked. The Evaluators
failed to keep a pragmatic view that source of recruitment was
likely to be the same in a fresh attempt also and that candidates
had only 8.5 minutes to answer each question and time constraint
did not allow them to give their best of performance. Even those
candidates who covered all aspects briefly were not awarded
proper marks. It was not a case where some candidates were
subjected to strict marking and others had an advantage of lenient
marking, so as to draw an inference that the evaluation method
was discriminatory or arbitrary. [Para 15][61-D-E]
1.3 It has been found as a matter of fact that the officials of
the High Court ensured adequate security measures such as
keeping the answer scripts in iron boxes under round-the-clock
security

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PRANAV VERMA & OTHERS
v.
THE REGISTRAR GENERAL OF THE HIGH COURT OF
PUNJAB AND HARYANA AT CHANDIGARH & ANR.
(Writ Petition (Civil) No. 565 of 2019)
DECEMBER 13, 2019
[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
Service Law: Selection - Interference with selection process
- Main (Written) Examination of Civil Judge wherein total 1195
candidates appeared and only 9 cleared the exam - Unsuccessful
candidates challenging the entire selection process and evaluation
method adopted therein and sought quashing of the result and reevaluation by independent expert Committee - Held: No
discriminatory or malafide practice was undertaken while
conducting the exam or its following processes - Officials of the
High Court ensured adequate security measures - Procedure of
evaluation was 'uniform' - Every candidate's answers were marked
on same parameters by the same examiner - There was no examiner
variability but marking and evaluation method was strict but it was
so for everyone, thus, the option of moderation is applied -
Alternative II of the Report by Justice Sikri is adopted, awarding
20 marks in Civil Law I and 10 marks in Civil law II - Prayer for reevaluation by an Independent Expert Committee cannot be accepted
- Also petitioners' plea that marks of the Main Exam should be
disclosed before conducting viva-voce, cannot be accepted since
that would invite bias or favourtism affecting the impartial
evaluation of a candidate in viva-voce - Thus, respondents directed
to award 20 grace marks in Civil Law-I paper and 10 grace marks
in Civil Law-II paper to all the candidates - Issuance of direction
to prepare fresh results of the Main (Written) Examination of Civil
Judge and complete the selection process within the stipulated
period - Constitution of India - Art. 32 - Judicial service.
Partly allowing the Writ Petitions, the Court
HELD: 1.1 In the instant case, Justice Sikri critically
examined the selection process as well as the evaluation method
 [2019] 15 S.C.R. 43
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and it is explicit from his report that the procedure of evaluation
was 'uniform'. Evaluation done by multiple evaluators i.e. one
Evaluator examining and marking one question in all the marksheets, ensures uniformity and prevents chance grading. Every
candidate's answers are marked on same parameters by the same
examiner. There can possibly be no other better method to ensure
uniformity in evaluation. The petitioners have stated that as per
the information received via RTI no model 'answer key' was
present. It gives more credance to the afore-stated method of
evaluation as no model 'answer key' ought to be devised for the
Main Exam, the purpose whereof is not to just assess the
knowledge of candidates but also to evaluate their analytical
ability. In the instant case, there was no Examiner Variability,
therefore, Justice Sikri very aptly remarked that, "this was well
intended move to attain uniformity in evaluation". This method
ensures equal level play field for all candidates. The only setback
was lack of holistic view and lack of realistic expectations in the
examiner's mind, for which there are adequate remedies.
[Para 14][60-G-H; 61-A-C]
1.2 The marking criteria and evaluation method was strict
but it was so for everyone. This was may be for the reason that
one Evaluator checked one answer in each script and in this
manner the entire lot of scripts were marked. The Evaluators
failed to keep a pragmatic view that source of recruitment was
likely to be the same in a fresh attempt also and that candidates
had only 8.5 minutes to answer each question and time constraint
did not allow them to give their best of performance. Even those
candidates who covered all aspects briefly were not awarded
proper marks. It was not a case where some candidates were
subjected to strict marking and others had an advantage of lenient
marking, so as to draw an inference that the evaluation method
was discriminatory or arbitrary. [Para 15][61-D-E]
1.3 It has been found as a matter of fact that the officials of
the High Court ensured adequate security measures such as
keeping the answer scripts in iron boxes under round-the-clock
security and CCTV cameras. Hence, it is just and fair to hold that
no discriminatory or malafide practice was undertaken while
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conducting the exam or its following processes. [Para 16][61-FG]
2.1 Considering that the marking was strict but not
discriminatory, the remedy of moderation of marks, in order to
remove the variation caused by multiple examiners and dearth
of time, is the only effective, equitable and efficasious solution.
The petitioners have stated and rightly so that as per the RTI,
there are no rules governing grace marks. They have suggested
that any appropriate scientific technique like scaling, or
moderation can be adopted in this case, as is done by Union Public
Service Commission (UPSC) for administrative appointments and
UP Public Service Commission (UPPSC) for judicial recruitments.
[Para 17][61-H; 62-A-B]
2.2 This Court in Sanjay Singh's case considered the
suitability of scaling method in depth but declined to approve the
same for Judicial Examinations. It considered the viability of
scaling and moderation for Judicial Services Examinations and
held that use of Scaling is appropriate only when there is
differentiation amongst subjects opted by candidates. This does
not apply in the cases where subjects are uniform. Further,
moderation is a more viable technique so as to exclude the effect
of examiner variability. In the instant case, there was no examiner
variability but marking was strict, thus, the option of moderation
deserves to be considered and applied. [Para 18, 19][62-B; 63D, F]
Sanjay Singh & Anr vs U.P. Public Service Commission
(2007) 3 SCC 720 : [2007] 1 SCR 235 - referred to.
2.3 Moderation can be by the addition of marks (in case of
strict marking) and/or deduction of marks (in case of lenient
marking). In the instant case that the strict marking has caused
severe prejudice to the candidates and only 0.702% of them could
qualify as against 107 vacancies. The candidates have been
suffering for last five years. It is, therefore, inevitable to do
complete justice and invoke the powers under Article 142 of the
Constitution and consequently award grace marks to the
candidates so that more candidates, who are otherwise no less
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meritorious, get an opportunity to appear for the viva-voce. The
question is how many grace marks should be awarded and what
should be the criteria followed. [Para 20, 21][63-G; 64-D-E]
Taniya Malik vs. The Registrar General of Delhi High
Court (2018) 14 SCC 129 : [2018] 10 SCR 348 -
distinguished.
2.4 Justice Sikri in his concise but scholarly authored report
has suggested three alternatives for awarding of grace marks;
First Alternative is awarding 20 marks in Civil Law-I; Second
Alternative is awarding 20 marks in Civil Law-I and 10 marks in
Civil Law-II; and Third Alternative is awarding 35 marks in
aggregate. After going through the report of Justice Sikri, in this
regards, it is deemed appropriate to adopt Alternative II of the
Report, since the marking in Civil Law-I and Civil Law-II both
was strict. Marking of Civil Law-II was only marginally strict.
Equity can thus be well balanced by awarding 10 marks to every
candidate in Civil Law-II paper and 20 marks in Civil Law-I.
The prayer of the petitioners for addition of 50 grace marks is
not found feasible, for the moderation should also look reasonable.
The petitioners have failed to assign any well founded reason for
seeking moderation of 50 grace marks, only on the apprehension
that even the candidates who secured good marks in written
examinations were given very low marks in viva-voce and the
Committee has been awarding a meagre 8 to 18 marks, and hence
they too will not be able to meet the eligibility criteria of minimum
50% marks. It is not compulsory for the High Court to fill all
vacant posts, even if suitable candidates are not available. [Para
22][64-F-H; 65-A]
2.5 The need of viva-voce is an integral part of selection
process for certain posts. The viva-voce and Written Examination
(Main Exam), thus, both have their own importance in a selection
process and it is for the interviewing panel to decide how many
marks be awarded to a candidate keeping in view his/her
performance in interview. Secondly, the composition of Selection
Committee is the sole prerogative of Chief Justice of the High
Court and this Court need not venture into the issue which
pertains to exercise of administrative power(s) of the Chief
Justice. [Para 23][65-C, E-F]
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3. The alternative prayer of the petitioners for re-evaluation
by an Independent Expert Committee is not worth acceptance.
Firstly, for the reason that these 107 posts are already lying vacant
for a considerable long period and the re-evaluation would further
delay it. Secondly, Justice Sikri has thoroughly examined the fact
situation before recommending the award of grace marks. Thirdly,
there is no provision for re-evaluation in the Recruitment Rules
and any such direction would run counter to the mandate of this
Court in H.P. Public Service v. Mukesh Thakur laying down that in
the absence of any provision under the statute or statutory rules/
regulations, the Courts should not generally direct re-evaluation.
[Para 24][65-G-H; 66-A]
H.P. Public Service Commission v. Mukesh Thakur
(2010) 6 SCC 759 : [2010] 7 SCR 189 - relied on.
4. As regards the petitioners' plea that marks of the Main
Exam should be disclosed before conducting viva-voce, such a
practice may not insulate the desired transparency, rather will
invite criticism of likelihood of bias or favourtism. The broad
principles to be laid down in this regard must be viewed keeping
in view the selections for various categories of posts by different
Selecting Authorities, for such a self-evolved criteria cannot be
restrocted to Judicial Services only. If the Members of the
Interviewing Boards are already aware of the marks of a candidate
secured in the Written Examination, they can individually or
jointly tilt the final result in favour or against such candidate. The
suggested recourse, thus, is likely to form bias affecting the
impartial evaluation of a candidate in viva-voce. As the written
examination assesses knowledge and intellectual abilities of a
candidate, the interview is aimed at assessing their overall
intellectual and personal qualities which are imperative to hold a
judicial post. Any measure which fosters bias in the minds of the
interviewers, therefore, must be done away with. [Para 27][66G; 67-A-C]
Ashok Kumar Yadav and Others v. State of Haryana
(1985) 4 SCC 417 : [1985] 1 Suppl. SCR 657 - relied
on.
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5. The respondents are directed to award 20 grace marks
in Civil Law-I paper and 10 grace marks in Civil Law-II paper
to all the candidates of 2019 Examination and prepare fresh results
of the Main (Written) Examination of Civil Judge (Junior Division)
within two weeks and complete the selection process within four
weeks thereafter. The entire selection process shall be completed
in all respects before 15th February, 2020. The left out vacant
posts along with vacancies which have occurred meanwhile and
those anticipated within next six months, be advertised as early
as possible and be filled in accordance with the timeline prescribed
by this Court in Malik Mazhar Sultan case. [Para 28][67-D-F]
Malik Mazhar Sultan vs. U.P. Public Service Commission
(2008) 17 SCC 703 - relied on.
CPIL v. Registrar General of High Court of Delhi
(2017) 11 SCC 456; Prashant Ramesh Chakrawar v.
UPSC & Ors (2013) 12 SCC 489; Sujasha Mukherji v.
High Court of Calcutta (2015) 11 SCC 395 : [2015] 2
SCR 480; Lila Dhar v. State of Rajasthan (1981) 4 SCC
159 : [1982] 1 SCR 320; Pramod Kumar Srivastava v.
Bihar Public Service Commission (2004) 6 SCC 714 :
[2004] 3 Suppl. SCR 372; Centre for Public Interest
Litigation vs Registrar-General High Court of Delhi
(2017) 11 SCC 456 - referred to.
Case Law Reference
(2017) 11 SCC 456
referred to
Para 10.1
[2007] 1 SCR 235
referred to
Para 13
(2013) 12 SCC 489
referred to
Para 13
[2015] 2 SCR 480
referred to
Para 13
[2018] 10 SCR 348
distinguished
Para 21
[1982] 1 SCR 320
referred to
Para 23
[2010] 7 SCR 189
relied on
Para 24
[2004] 3 Suppl. SCR 372
referred to
Para 25
(2017) 11 SCC 456
referred to
Para 26
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[1985] 1 Suppl. SCR 657
relied on
Para 27
(2008) 17 SCC 703
relied on
Para 28
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
565 of 2019.
[Under Article 32 of The Constitution of India]
With
W.P. (C) No. 617/2019 and 651/2019
Nidesh Gupta, Gurminder Singh, Sr. Advs., Prashant Bhushan,
Hemanth Pothula, Miss Tulika Prakash, Ravi Panwar, Ashok Mathur,
Ms. Neidhi Gupta, D. S. Chauhan, Ms. Ruchi Singh, Prashant Kumar,
Surender Kumar Gupta and Ms. Priya Mishra, Advs. for the appearing
parties.
The following Judgment of the Court was delivered :
JUDGMENT
1. These Writ Petitions under Article 32 of the Constitution have
been filed at the instance of more than 90 candidates challenging the
entire selection process and evaluation method adopted in the Main
(Written) Examination of Civil Judge (Junior Division) [herein referred
to as "Main Exam"] in the Haryana Civil Service (Judicial Branch)
Examination - 2017 and seeking to quash the result declared on 11.4.2019
along with the directions to get all the papers of the Main Exam of the
petitioners to be re-evaluated by an Independent Expert Committee,
besides the constitution of an Independent Judicial Service Commission
for conducting examinations for selection of Lower Judicial Officers.
Factual Background
2. Pursuant to the Notification-cum-Advertisement No. 6 of 2016
published on 20.03.2017 [herein after referred to as the "Original
Notification"] for recruitment to 109 posts of Civil Judge (Junior Division)
in Haryana Civil Service (Judicial Branch) - 2017, Preliminary
Examination was conducted on 16.07.2017. However, on account of
question paper-leak, the High Court of Punjab & Haryana scrapped the
said examination on 13.09.2017. Thereafter, 107 posts were re-notified
on 27.08.2018, out of which 75 were meant for General Category and
the remaining 32 were earmarked for Scheduled Castes, Backward
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Classes (a), Backward Classes (b), Economically Backward Persons in
General Category, Ex-Service Men and Physically Handicapped Persons
of Haryana State.
3. The examination was conducted in accordance with provisions
of Punjab Civil Services (Judicial Branch) Rules, 1951 as applicable to
the State of Haryana and as amended from time to time including vide
notification no. GSR1/Const./Art.234 & 309/2017 dated 09.01.2017. This
examination comprised of three stages -
(I) Preliminary Examination
(II) Main Examination
(III) Viva Voce
4. Marks obtained in the Preliminary Examination were not to be
counted towards final results. The purpose was solely to shortlist the
candidates for the Main Exam. Candidates equal to 10 times the number
of vacancies advertised, were shortlisted in order of their merit in the
respective categories to enable them to sit in the Main Exam. If two or
more candidates at the last number got equal marks, then all of them
were considered eligible to sit for the Main Exam, warranting the
corresponding increase in the stipulated ratio.
5. The Main Exam consisted of five papers - Civil Law - I, Civil
Law - II, Criminal Law, English and Hindi. The first four papers were
for 200 marks and Hindi was for 100 marks. In order to qualify for vivavoce examination, a candidate is required to secure a minimum of 33%
marks in each of the written exam and an aggregate of minimum 50%
marks in all five papers [45% for reserved category]. It is pertinent to
note that viva-voce is also a part of the Main Exam and treated as the
sixth paper of 200 marks. No minimum marks are prescribed for vivavoce as per the Rules. The candidates equivalent to three times of the
advertised posts, who qualify in the written Exam are called strictly in
order of merit to appear for the viva-voce. Marks obtained in the five
papers are consolidated with the marks obtained in Viva Voce and
accordingly a final merit list is prepared.
6. Preliminary Examination pursuant to the re-notified vacancies
was held on 22.12.2018 and its result was declared on 21.01.2019. Main
Exam was held from 15.03.2019 to 17.03.2019. Results of the Main
Exam were declared on 11.04.2019 wherein only 9 candidates (6 of
General Category and 3 of Reserved Categories) were declared qualified
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and found fit for the Viva Voce. Complete details of the number of
candidates who appeared/qualified in each stage of the selection process
are as follows:-
Candidates appeared in Preliminary Examination
14301
Candidates qualified for Main Exam
1282
Candidates appeared in Main Exam
1195
Candidates found fit for Viva Voce
9(6+3)
7. Aggrieved by their exclusion from amongst the candidates
qualified for viva voce and contending that the entire selection process
is unjust, unfair, arbitrary and violative of Article 14 of the Constitution,
the Petitioners have approached this Court and sought indulgence in
light of the followings:
a. As per the result declared, only 0.702% candidates managed
to pass the Main Exam and the rest 99.298% failed. The
explanation given for this was that no other candidate could
secure a minimum of 33% in each subject and an aggregate of
50% in all five (45% for reserved category).
b. Information obtained through RTI discloses that there was no
marking criteria or model answer key for evaluation of answer
scripts of the Main Exam. Performance of the candidates solely
depended on the discretion of the examiner(s). Further, no
principles governing grace marks were available.
c. The High Court has provided an ineffective and infructuous
remedy of paid re-checking without the disclosure of marks of
candidates who had not qualified.
8. This Court on 29.04.2019 directed the Registrar General of the
High Court to be present in person along with answer scripts of all the
candidates who appeared in the Main Exam. On 03.05.2019, having
considered the grievances of the Petitioners, Hon'ble Mr. A.K. Sikri, J.,
a former Supreme Court Judge was requested to look into some of the
answer scripts of the Main Exam to make an assessment whether the
evaluation undertaken should be accepted by the Court. On 31.07.2019,
Justice Sikri, after a deep insight and thorough evaluation of the answer
scripts gave his report along with valuable suggestions of paramount
importance.
Report by Hon'ble Justice (Retd.) A. K. Sikri dated
31.07.2019
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9. Justice Sikri has evaluated the selection process as well as
the evaluation method used in the Main Exam and opined under different
heads as follows:
9.1 Selection Process - It is observed that the selection process
is prima facie faultless. The Co-ordinators of the exam were
highly qualified persons i.e. Vice Chancellors of National Law
Schools or very senior professors, who provided the question
bank to the Recruitment Committee. On this basis, the
Recruitment Committee formulated the question paper(s) for
the Main Exam. Examination Centre-in-charge handed over
answer scripts of 1195 candidates in sealed iron boxes to the
Registrar-Recruitment. These iron boxes were kept under
strict surveillance round the clock. Also, roll numbers were
concealed on the answer sheets before evaluation. Many
other adequate security measures were also ensured.
9.2 Evaluation Method - To make an assessment on the
evaluation method adopted in the Main Exam, Justice Sikri
randomly selected scripts of 5 candidates who had qualified
the exam and of 5 petitioners. These answer scripts had been
provided to him in Delhi under strict security. Further, to ensure
transparency, he checked answer sheets of some other
candidates who had not qualified the Main Exam (other than
petitioners) for which he visited the High Court of Punjab &
Haryana on two occasions- 24.05.2019 and 11.06.2019.
9.3 The purpose to evaluate all the scripts was to compare the
marks given to the qualified candidates with those who did
not qualify by going through the quality of their answers. He
also had a look at the list of marks obtained by all the
candidates.
9.4 Observations :
Justice Sikri in his report has observed that the evaluation
done for Criminal Law, English and Hindi papers was
appropriate. He identified the main problem in Civil Law-I
paper and found that there were 18 questions in total in this
paper and all of them were compulsory. Total time for finishing
the paper was 3 hours i.e. 180 minutes. He made an
assessment that if 27 minutes are taken out for reading and
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understanding the questions (1.5 minute per question), then
the candidate was left with 8.5 minutes to answer each
question. The questions were descriptive in nature. It is
pertinent to note that the three law papers were evaluated by
fifteen Evaluators by allotting one question to one Evaluator.
Thus, one question was evaluated by one Evaluator only in
all answer scripts and in this manner each answer script was
examined by many Evaluators. He, thus, came to the following
conclusions:
•
Marking of Civil Law- I was strict. Evaluators seemed to
expect long answers for each question covering all aspects
in detail, without recognizing that candidates barely had any
time. Even the candidates who covered all aspects in brief
were not awarded good marks.
•
Highest marks in Civil Law- I were 95 out of 200 i.e. 47.5%.
Even, this candidate deserved more marks.
•
The method of getting answer scripts evaluated by many
Evaluators was intended to attain uniformity. However, a major
repercussion was that this left the Evaluators with no
opportunity to see overall performance of the candidates and
take a holistic view. Evaluators would have had a realistic
expectation in mind if they checked the complete answer
scripts as opposed to checking only one answer.
•
Paper was not difficult but too lengthy. Most of the questions
were descriptive, some replica of bare provisions. Examiner
expected long answers, but the questions were too many and
the marking was extremely strict.
•
For Civil Law -II, - attributes pointed in Civil Law - I were
not present. Though, it was noted that suitable marks were
not awarded even when answers were perfect. There was
marginally strict marking.
9.5 Suggestions
Justice Sikri has unambiguously opined that the situation can
be remedied by moderating marks so that more students can
qualify the Main Exam for appearing in Viva Voce. A total of
311 candidates secured more than 33% marks in Civil Law-I
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Paper but they could not secure aggregate 50% marks which
impacted their final result. Accordingly, he has after due
deliberations suggested the following three alternatives: -
•
Alternative I - 20 Grace Marks i.e. 10% be given in Civil
Law -I. Using this, 28 more candidates (15 General + 13
Reserved) will qualify for Viva Voce making the total number
of qualified candidates to 37.
•
Alternative II - 20 Grace Marks i.e. 10% be given to all
candidates in Civil Law-I paper and 10 Grace Marks i.e. 5%
be added in marks secured by all candidates in Civil Law-II
paper. Cumulatively, 30 marks in total will increase. Using this,
60 (33 General + 27 Reserved) candidates will get through to
Viva Voce taking the tally of qualified candidates to 69.
•
Alternative III - Moderation be done by giving 35 marks to
all candidates. This will add 42 General Category candidates
and 23 Reserved Category candidates to the existing number
of 9, thereby making a total of 74.
In the concluding remarks, Justice Sikri has recommended use
of Alternative I. But keeping in mind availability of large scale
vacancies, he has also suggested other two alternatives by
virtue of which more candidates can qualify for viva-voce.
Contentions of Petitioners:
10. Learned Counsel for the Petitioners, Mr. Prashant Bhushan
at the outset has pointed out an inadvertent clerical error in the report of
Sikri, J. regarding the number of vacancies allocated for general and
reserved categories, as per the re-notified advertisement. On merits, his
submissions may be summarized as follows:-
10.1 First Alternative sought by the petitioners is re-evaluation
of both the Civil Law-I and Civil Law-II papers by an Independent
Authority as there was strict marking in these papers. For this,
the petitioners lay emphasis on the standards laid down in CPIL
vs Registrar General of High Court of Delhi1.
10.2 The Second Alternative submission is that 50 grace marks
may be awarded to all the candidates, so the number of candidates
1 (2017) 11 SCC 456
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qualified for Viva Voce would increase to 150-160 (nearly 1.5
times the number of vacancies available). It is highlighted that no
appointment had been made in Haryana Judicial Service since
2014.
10.3 Shortlisting of sufficient candidates for appearing in vivavoce is desperately needed so that no seat is left vacant keeping
in mind that many of the candidates have already been selected
for various other State Judicial Services. 31 petitioners have
already been appointed in different Judicial Services and many
more would have been appointed from the 1195 candidates who
appeared in the Main Exam. It can be safely inferred that some
of the candidates are likely to drop out of Haryana Judicial Service
Interview process or appointment.
10.4 The petitioners oppose the idea of conducting a fresh
examination because it will only add to the hardships of the
candidates, more so when they have already appeared twice in
the said process.
10.5 The petitioners have highlighted the criteria of obtaining in
aggregate a minimum of 50% marks in six papers (including five
papers of Main Exam and sixth- viva-voce) and expressed their
apprehension of scoring low marks in viva-voce due to which
they would not be able to secure the minimum aggregate of 50%
marks to meet the eligibility criteria. The reason of apprehension
is that the same Recruitment Committee constituted by the Punjab
and Haryana High Court has awarded only 8 to 18 marks to a
large number of candidates even though they have secured goods
marks in the written examinations. This Court, therefore, should
employ a moderation technique by which candidates who deserve
the seat can get it.
10.6 Seventy-four candidates who will become successful to
appear for Viva Voce as per Alternative III suggested by Sikri, J.
would only touch the bare minimum marks i.e. 450 marks out of
900 and if they fail to secure 50% marks in Viva Voce then the
entire exercise would become futile.
10.7 The petitioners, thus, suggest moderation and scaling scientific
techniques to remove variation caused by factors like multiple
examiners, multiple optional subjects with varying difficulty levels
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or different difficulty levels of the mandatory subjects for all
candidates. These methods, according to them, are used by the
UPSC for administrative appointments and UPPSC for judicial
recruitments.
10.8 Petitioners and other candidates have immensely suffered in
the last 5 years in anticipation of the exam dates and fair selection
and appointments. They could not engage themselves in any other
career options due to the constant uncertainty.
10.9 The names and subject marks obtained by each candidate
should be disclosed in a consolidated list after the Main Exam and
before the Viva Voce. Similar procedure is followed in Delhi,
Rajasthan etc. to ensure transparency.
10.10 The timelines given in Malik Mazhar Sultan vs. U.P. Public
Service Commission2 should be strictly adhered to. Respondents
should conduct the next examination cycle in a time bound manner.
11. S/Shri Nidesh Gupta and Gurminder Singh, Senior Advocates
representing the Punjab and Haryana High Court, on the other hand,
strenuously opposed the petitioners' claim and urged that since Justice
Sikri has not found any fault or illegality in the selection process which
has been conducted in most fair and impartial manner under strict
adminisrative vigil, there is no necessity for this Court to interfere with
the selection process while exercising the power of judicial review. They
urged that the standards of the examination be not diluted by accepting
the suggestions given by Justice Sikri in his report and the appropriate
recourse would be to re-advertise the vacant posts and make selection
afresh.
Issues for consideration
12. On a consideration of the rival submissions and on appreciation
of the report submitted by Justice Sikri, it appears that the following
questions arise for our consideration:
(i) Whether selection process and evaluation method is unjust,
arbitrary and in violation of Article 14 of the Constitution?
(ii) Whether moderation of marks (grace marks) is needed in the
facts and circumstances of the present case?
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(iii) Whether re-valuation of Civil Law-I and Civil Law-II papers
is required by an Independent Expert Committee?
(iv) Whether the marks obtained in the Main Exam be disclosed
before the viva-voce is conducted?
Analysis of the Issues:
Re: Issue 1
13. The Petitioners contended that the evaluation has been done
without any marking criteria, it lacks uniformity and is in contravention
of the view taken by this Court in the following decisions -
• Sanjay Singh & Anr vs U.P. Public Service Commission3
• Prashant Ramesh Chakrawar vs UPSC & Ors4
• Sujasha Mukherji vs High Court of Calcutta5
• CPIL vs Registrar General of the High Court of Delhi6
13.1 In Sanjay Singh (supra), this Court analytically went into
inner depth of the scheme of Examination and laid down guidelines
regarding moderation of marks in case of judicial services
examination. It was, thus, held:
"23. When a large number of candidates appear for an
examination, it is necessary to have uniformity and
consistency in valuation of the answer-scripts. Where the
number of candidates taking the examination are limited
and only one examiner (preferably the paper-setter himself)
evaluates the answer-scripts, it is to be assumed that there
will be uniformity in the valuation. But where a large
number of candidates take the examination, it will not be
possible to get all the answer-scripts evaluated by the same
examiner. It, therefore, becomes necessary to distribute the
answer-scripts among several examiners for valuation with
the paper-setter (or other senior person) acting as the Head
Examiner. When more than one examiner evaluate the
answer-scripts relating to a subject, the subjectivity of the
3 (2007) 3 SCC 720
4 (2013) 12 SCC 489
5 (2015) 11 SCC 395
6 (2017) 11 SCC 456
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respective examiner will creep into the marks awarded by
him to the answer-scripts allotted to him for valuation. Each
examiner will apply his own yardstick to assess the answerscripts. Inevitably therefore, even when experienced
examiners receive equal batches of answer scripts, there
is difference in average marks and the range of marks
awarded, thereby affecting the merit of individual
candidates. This apart, there is 'Hawk-Dove' effect. Some
examiners are liberal in valuation and tend to award more
marks. Some examiners are strict and tend to give less
marks. Some may be moderate and balanced in awarding
marks. Even among those who are liberal or those who
are strict, there may be variance in the degree of strictness
or liberality. This means that if the same answer-script is
given to different examiners, there is all likelihood of
different marks being assigned. If a very well written
answer-script goes to a strict examiner and a mediocre
answer-script goes to a liberal examiner, the mediocre
answer-script may be awarded more marks than the
excellent answer-script. In other words, there is 'reduced
valuation' by a strict examiner and 'enhanced valuation'
by a liberal examiner. This is known as 'examiner
variability' or 'Hawk-Dove effect'. Therefore, there is a
need to evolve a procedure to ensure uniformity inter se
the Examiners so that the effect of 'examiner subjectivity'
or 'examiner variability' is minimised. The procedure
adopted to reduce examiner subjectivity or variability is
known as moderation. The classic method of moderation
is as follows:
(i) The paper-setter of the subject normally acts as the Head
Examiner for the subject. He is selected from amongst senior
academicians/scholars/senior civil servants/Judges. Where
the case of a large number of candidates, more than one
examiner is appointed and each of them is allotted around
300 answer-scripts for valuation.
(ii) To achieve uniformity in valuation, where more than
one examiner is involved, a meeting of the Head Examiner
with all the examiners is held soon after the examination.
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They discuss thoroughly the question paper, the possible
answers and the weightage to be given to various aspects
of the answers. They also carry out a sample valuation in
the light of their discussions. The sample valuation of
scripts by each of them is reviewed by the Head Examiner
and variations in assigning marks are further discussed.
After such discussions, a consensus is arrived at in regard
to the norms of valuation to be adopted. On that basis, the
examiners are required to complete the valuation of answer
scripts. But this by itself does not bring about uniformity
of assessment inter se the examiners. In spite of the norms
agreed, many examiners tend to deviate from the expected
or agreed norms, as their caution is overtaken by their
propensity for strictness or liberality or eroticism or
carelessness during the course of valuation. Therefore,
certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the
Head Examiner conducts a random sample survey of the
corrected answer scripts to verify whether the norms
evolved in the meetings of examiner have actually been
followed by the examiners. The process of random sampling
usually consists of scrutiny of some top-level answer scripts
and some answer books selected at random from the batches
of answer scripts valued by each examiner. The top-level
answer books of each examiner are revalued by the Head
Examiner who carries out such corrections or alterations
in the award of marks as he, in his judgment, considers
best, to achieve uniformity. (For this purpose, if necessary
certain statistics like distribution of candidates in various
marks ranges, the average percentage of marks, the highest
and lowest award of marks etc. may also be prepared in
respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards adopted
by each examiner, the Head Examiner may confirm the
award of marks without any change if the examiner has
followed the agreed norms, or suggest upward or
downward moderation, the quantum of moderation varying
according to the degree of liberality or strictness in
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marking. In regard to the top level answer books revalued
by the Head Examiner, his award of marks is accepted as
final. As regards the other answer books below the top
level, to achieve maximum measure of uniformity inter se
the examiners, the awards are moderated as per the
recommendations made by the Head Examiner.
(v) If in the opinion of the Head Examiner there has been
erratic or careless marking by any examiner, for which it
is not feasible to have any standard moderation, the answer
scripts valued by such examiner are revalued either by the
Head Examiner or any other Examiner who is found to
have followed the agreed norms.
(vi) Where the number of candidates is very large and the
examiners are numerous, it may be difficult for one Head
Examiner to assess the work of all the Examiners. In such
a situation, one more level of Examiners is introduced. For
every ten or twenty examiners, there will be a Head
Examiner who checks the random samples as above. The
work of the Head Examiners, in turn, is checked by a Chief
Examiner to ensure proper results.
The above procedure of 'moderation' would bring in
considerable uniformity and consistency.
It should be noted that absolute uniformity or consistency
in valuation is impossible to achieve where there are several
examiners and the effort is only to achieve maximum
uniformity."
[Emphasis applied]
13.2 The guidelines laid down in Sanjay Singh (supra) have been
followed in the other three cases cited on behalf of the petitioners
viz. Prashant Ramesh Chakrawar (supra), Sujasha Mukherji
(supra) and CPIL (supra).
14. In the instant case, Justice Sikri critically examined the selection
process as well as the evaluation method and it is explicit from his report
that the procedure of evaluation was 'uniform'. We are of the view that
evaluation done by multiple evaluators i.e. one Evaluator examining and
marking one question in all the mark-sheets, ensures uniformity and
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prevents chance grading. Every candidate's answers are marked on
same parameters by the same examiner. There can possibly be no other
better method to ensure uniformity in evaluation. The petitioners have
stated that as per the information received via RTI no model 'answer
key' was present. It gives more credance to the afore-stated method of
evaluation as no model 'answer key' ought to be devised for the Main
Exam, the purpose whereof is not to just assess the knowledge of
candidates but also to evaluate their analytical ability. In the present
case, there was no Examiner Variability, therefore, Justice Sikri has very
aptly remarked that, "this was well intended move to attain uniformity
in evaluation". This method ensures equal level play field for all
candidates. The only setback was lack of holistic view and lack of realistic
expectations in the examiner's mind, for which there are adequate
remedies as discussed in the later part of this order.
15. The marking criteria and evaluation method was strict but it
was so for everyone. This was may be for the reason that one Evaluator
checked one answer in each script and in this manner the entire lot of
scripts were marked. The Evaluators failed to keep a pragmatic view
that source of recruitment was likely to be the same in a fresh attempt
also and that candidates had only 8.5 minutes to answer each question
and time constraint did not allow them to give their best of performance.
Even those candidates who covered all aspects briefly were not awarded
proper marks.