# SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD '237

- **Citation:** [2007] 1 S.C.R. 235
- **Court:** Supreme Court of India
- **Decided:** 2007-01-09
- **Bench:** Y.K. Sabharw Al, C.K. Thakker, R.V. Ra Veendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sanjay-singh-v-u-p-public-service-commn-allahabad-237-22811
- **Pages:** 43

## Headnote

-
--t
Service law-Appointment-To the post of Civil Judge (Junior
,.
Division)-Competitive Examination for- Conducted by Public Service
Commission-Use of 'Scaling System' for marking by the Commission- c
Challenged-Earlier decision of Supreme Court upholding 'Scaling
System '-Reconsideration of the decision also sought-Held : Scaling
system is arbitrary and irrational-It is also violative of Rule 20(1) and
(3) and Note (I) of Appendix-II of Judicial Service Rules-However, the
decision will not affect selections and appointments already made as the
D
same was bona fide-The parties who have approached the courts whose
aggregate of raw marks are more than the aggregate marks of the last
y
selected candidate in the respective category to be considered for
~
appointment-UP Judicial Service Rules, 2001-rr. 20(1) and (3) and
Note (1) of Appendix JI-UP State Public Service Commission (Regulation
of Procedure and Conduct of Business) Rules, 1976-r. 51-U.P. Public
E
Service Commission (Regulation of Procedure and Conduct of Business)
Act, 1974 -Constitution of India, 1950-Articles 234 and 309.
Constitution of India, 1950-Article 32-Writ Petition-With reference
to an issue subject matter of earlier decision-Maintainability of-Held :
F
..
Maintainable-Ratio decidendi of earlier decision is open for examination
..,,
in subsequent decision-Where violations of fundamental rights is alleged,
it cannot be held as not maintainable.
Precedent-What constitutes-Held: It is ratio decidendi and not final
G
order of a judgment which forms precedent.
Interpretation of Statutes-Held : Courts will not add words to a
statute or read into the statute words not in it-In case of finding of
---;-
omission of words used, it cannot make up the deficiency, if the wordings
are clear and unambiguous.
H
235
236
SUPREME COURT REPORTS
[2007] 1 S.C.R
A
Words and Phrases:
'Judgment' 'order and 'decree '-Meaning of
'Scaling'-Meaning of
B
Present Writ Petitions were filed by the appellants questioning use
of 'Scaling System' of working in the examinations conducted by U.P.
,
Public Service Commission for appointment to the posts of Civil Judge,
Junior Division. Petitioners are unsuccessful candidates. They also prayed
_,_
"
for reconsideration of the decision in upholding the scaling system. UP.
c Public Service Commission v. Subhash Chandra Dixit, [2003] 12 SCC 701.
The questions consider were :
(i) Whether the writ petitions were not maintainable?
D
(ii) Whether 'Scaling' of marks was contrary to or prohibited by the
relevant Rules?
..., ..
(iii) Whether the 'Scaling System' adopted by the Commission was
arbitrary and irrational, and whether the decision in S.C. Dixit's case
E
approving the 'Scaling System' required reconsideration?
(iv) If the statistical scaling system is found to be illegal or irrational
or unsound, whether the selections already made, which were the subjectmatter of these petitions, should be interfered with?
F
Partly allowing the petitions, the Court
..
y
HELD: 1.1. It cannot be said that a writ petition under Article 32 of
the Constitution is barred or not maintainable with reference to an issue
which is the subject-matter of an earlier decision. [Para 10]
.._,
G
1.2. It is true that a judgment of this Court cannot be challenged in
a petition under Article 32. It can, however, be reviewed under Article 137
or in exceptional circumstances reconsidered in exercise of inherent
-
power, on a curative petition. It is equally true that a final judgment of a
-+--
H High Court can be challenged only by an appeal under Articles 132 to 134
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD '237
or by obtaining 'special leave' under Article 136 and not by a petition under
A
r
Article 32. But that is not the issue here. (Para 8] (247-G, H, 248-A]
1.3. In the present case, the petitioners do not seek to upset the
'order' part of the judgment in S. C. Dixit 's case which decided the validity
of UP Civil Judge (Junior Division), Examination, 2000, held under

## Text

_Characters 0–39,759 of 102,206. This is a partial read: ask again with offset=39759 for what follows._

SANJA Y SINGH & ANR .
A
.,
v.
U.P. PUBLIC SERVICE COMMISSION ALLAHABAD AND ANR.
JANUARY 9, 2007
[Y.K. SABHARW AL, CJI, C.K. THAKKER AND
R.V. RA VEENDRAN, JJ.]
-
--t
Service law-Appointment-To the post of Civil Judge (Junior
,.
Division)-Competitive Examination for- Conducted by Public Service
Commission-Use of 'Scaling System' for marking by the Commission- c
Challenged-Earlier decision of Supreme Court upholding 'Scaling
System '-Reconsideration of the decision also sought-Held : Scaling
system is arbitrary and irrational-It is also violative of Rule 20(1) and
(3) and Note (I) of Appendix-II of Judicial Service Rules-However, the
decision will not affect selections and appointments already made as the
D
same was bona fide-The parties who have approached the courts whose
aggregate of raw marks are more than the aggregate marks of the last
y
selected candidate in the respective category to be considered for
~
appointment-UP Judicial Service Rules, 2001-rr. 20(1) and (3) and
Note (1) of Appendix JI-UP State Public Service Commission (Regulation
of Procedure and Conduct of Business) Rules, 1976-r. 51-U.P. Public
E
Service Commission (Regulation of Procedure and Conduct of Business)
Act, 1974 -Constitution of India, 1950-Articles 234 and 309.
Constitution of India, 1950-Article 32-Writ Petition-With reference
to an issue subject matter of earlier decision-Maintainability of-Held :
F
..
Maintainable-Ratio decidendi of earlier decision is open for examination
..,,
in subsequent decision-Where violations of fundamental rights is alleged,
it cannot be held as not maintainable.
Precedent-What constitutes-Held: It is ratio decidendi and not final
G
order of a judgment which forms precedent.
Interpretation of Statutes-Held : Courts will not add words to a
statute or read into the statute words not in it-In case of finding of
---;-
omission of words used, it cannot make up the deficiency, if the wordings
are clear and unambiguous.
H
235
236
SUPREME COURT REPORTS
[2007] 1 S.C.R
A
Words and Phrases:
'Judgment' 'order and 'decree '-Meaning of
'Scaling'-Meaning of
B
Present Writ Petitions were filed by the appellants questioning use
of 'Scaling System' of working in the examinations conducted by U.P.
,
Public Service Commission for appointment to the posts of Civil Judge,
Junior Division. Petitioners are unsuccessful candidates. They also prayed
_,_
"
for reconsideration of the decision in upholding the scaling system. UP.
c Public Service Commission v. Subhash Chandra Dixit, [2003] 12 SCC 701.
The questions consider were :
(i) Whether the writ petitions were not maintainable?
D
(ii) Whether 'Scaling' of marks was contrary to or prohibited by the
relevant Rules?
..., ..
(iii) Whether the 'Scaling System' adopted by the Commission was
arbitrary and irrational, and whether the decision in S.C. Dixit's case
E
approving the 'Scaling System' required reconsideration?
(iv) If the statistical scaling system is found to be illegal or irrational
or unsound, whether the selections already made, which were the subjectmatter of these petitions, should be interfered with?
F
Partly allowing the petitions, the Court
..
y
HELD: 1.1. It cannot be said that a writ petition under Article 32 of
the Constitution is barred or not maintainable with reference to an issue
which is the subject-matter of an earlier decision. [Para 10]
.._,
G
1.2. It is true that a judgment of this Court cannot be challenged in
a petition under Article 32. It can, however, be reviewed under Article 137
or in exceptional circumstances reconsidered in exercise of inherent
-
power, on a curative petition. It is equally true that a final judgment of a
-+--
H High Court can be challenged only by an appeal under Articles 132 to 134
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD '237
or by obtaining 'special leave' under Article 136 and not by a petition under
A
r
Article 32. But that is not the issue here. (Para 8] (247-G, H, 248-A]
1.3. In the present case, the petitioners do not seek to upset the
'order' part of the judgment in S. C. Dixit 's case which decided the validity
of UP Civil Judge (Junior Division), Examination, 2000, held under the UP
Nyayik Sewa Niyamawali, 1951. The grievance of the petitioners is in
B
regard to the UP Civil Judge (Junior Division) Examination, 2003, held
under the UP Judicial Service Rules 2001. They, however, contend that the
ratio decidendi of the decision in S. C. Dixit's case upholding the
/
Commission's system of scaling of marks in written examination, requires
reconsideration. Therefore, these petitions are neither for 'review' nor for c
'setting aside' or 'questioning' the decision in S.C. Dir:it's case. [Para 9)
Rupa Hurra v. Ashok Hurra, [2002] 4 SCC 388, distinguished.
1.4. In regard to decisions of civil courts in suits governed by Civil
Procedure Code or appeals therefrom, the term 'judgment' refers to the
D
grounds of a decree or order, 'decree' refers to the formal expression of
an adjudication in a suit and 'order' refers to formal expression of any
y
decision of a civil court which is not a decree. In regard to the decisions
a
of High Court and Supreme Court in writ jurisdiction, the term 'judgment'
is normally used to refer to the 'judgment and order', that is the grounds
E
for the decision and the formal expression of the decision.
[Para 9] [248-A, BJ
1.5. Broadly speaking, every judgment of superior courts has three
segments, namely, (i) the facts and the point at issue; (ii) the reasons for
the decision; and (iii) the final order containing the decision. The reasons
F
. '--
for the decision or the ratio decidendi is not the final order containing the
decision. In fact, in a judgment of this Court, though the ratio decidendi
may point to a particular result, the decision (final order relating to reliet)
may be different and not a natural consequence of the ratio decidendi of
·'
the judgment It is the ratio decidendi of a judgment and not the final order
in the judgment, which forms a precedent. The term 'judgment' and
G
'decision' are used, rather loosely, to refer to the entire judgment or the
final order or the ratio decidendi of a judgment. Where violation of a
~
fundamental right of a citizen is alleged in a petition under Article 32, it
-t
cannot be dismissed, as not maintainable, merely because it seeks to
distinguish or challenge the ratio decidendi of an earlier judgment, except
H
238
SUPREME COURT REPORTS
'[2007] I S.C.R.
A
where it is between the same parties and in respect of the same cause of
action. Where a legal issue raised in a petition under Article 32 is covered
by a decision of this Court, the Court may dismiss the petition following
the ratio decidendi of the earlier decision. Such dismissal is not on the
B
ground of 'maintainability' but on the ground that the issue raised is not
tenable, in view of the law laid down in the earlier decision. But if the
court is satisfied that the issue raised in the later petition requires
consideration and in that context the earlier decision requires
re-examination, the court can certainly proceed to examine the matter (or
refer the matter to a larger Bench, ifthe earlier decision is not of a smaller
Bench). When the issue is re-examined and a view is taken different from
C
the one taken earlier, a new ratio is laid down. When the ratio decidendi
of the earlier decision undergoes such change, the final order of the earlier
decision as applicable to the parties to the earlier decision, is in no way
altered or disturbed. [Para 10] [248-E, F, G, 249-A, B, C, D]
D
E
2.1. It is no doubt true that Judicial Service Rules govern the
recruitment to Judicial Service, having been made in exercise of power
under Article 234, in consultation with both the commission and the High
Court. It also provides what examinations _should be conducted and the
maximum marks for each subject in the examination. But the Judicial
Service Rules entrust the functio~ of conducting examinations to the
Commission. The Judicial Service Rules do not prescribe the manner and
procedure for holding the examination and valuation of answer-scripts and
award of the final marks and declaration of the results. Therefore, it is for
the Commission to regulate the manner in which it will conduct the
examination and value the answer scripts, subject, however, to the provisions
F
of the Judicial Service Rules. If the Commission has made Rules to
regulate the procedure and conduct of the examination, they will naturally
apply to any examination conducted by it for recruitment to any service,
including the judicial service. But where the Judicial Service Rules
make a specific provision in regard to any aspect of examination,
G
such provision will prevail, and the provision of PSC Procedure Rules, to
the extent it is inconsistent with the Judicial Service Rules, will be
inapplicable. Further, if both the Rules have made provision in regard to
a particular matter, the PSC Procedure Rules will yield to the Judicial
Service Rules. [Para 17] [253-D, E, F, G]
H
2.2. The manner in which the list of candidates as per merit should
;:
,.. .
SANJA Y SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 239
..... 'f
be prepared is provided both in the Judicial Service Rules and the PSC
A
Procedure Rules. As the field is occupied by Rule 20(3) and Note (i) of
Appendix-II of Judicial Service Rules, they will prevail over the general
provision in Rule 51 of PSC Procedure Rules. [Para 181 [253-G, 254-A]
2.3. Though Judicial Service Rules refer to 'marks finally awarded',
B
the said Rules do not contain a provision similar to the proviso to Rule 51
'
of PSC Procedure Rules, enabling the Commission to adopt any method,
t
device or formula to eliminate variation in the marks. It is not possible to
--
I
read the proviso to Rule 51 or words to that effect into Rule 20(3) or Note
(i) of Appendix-II of Judicial Service Rules. Courts will not add words to
a statute or read into the statute words not in it. Even if the courts come c
to the conclusion that there is any omission in the words used, it cannot
-I
make up the deficiency, where the wording as it exists is clear and
unambiguous. While the courts can adopt a construction which will carry
out the obvious intention of the legislative or rule making authority, it
cannot set at naught the legislative intent clearly expressed in a statute or
D
the rules. Therefore, Rule 20(3) and Note (i) of Appendix-II has to be read
-\
as they are without the addition of the proviso to Rule 51 of PSC Procedure
"
"'
..I
Rules. [Para 19) [254-H, 255-A, B, CJ
2.4. It cannot be said that the words "marks awarded" or "marks
obtained in the written papers" refers only to the actual marks awarded by
E
the examiner. 'Valuation' is a process which does not end on marks being
awarded by an Examiner. Award of marks by the Examiner is only one stage
_,
of the process of valuation. Moderation when employed by the examining
authority, becomes part of the process of valuation and the marks awarded
on moderation become the final marks of the candidate. In fact Rule 20(3)
F
v
specifically refers to the 'marks finally awarded to each candidate in the
written examination', thereby implying that the marks awarded by the
examiner can be altered by moderation. [Para 20) [255-G, H, 256-A]
.. , -
2.5. Scaled scores are not marks awarded to a candidate in a written
examination, but a figure arrived at for the purpose of being placed on a
G
common scale. It can vary with reference to two arbitrarily fixed variables,
namely 'Assumed Mean' and 'Assumed Standard Mean'. 'Scaled scores' or
....
'scaled marks' cannot be considered to be 'marks awarded to a candidate
in the written examination'. Therefore, scaling violates Rule 20(3) and Note
(i) of Appendix-II of Judicial Service Rules. [Para 21) [256-B-C]
H
A
B
c
240
SUPREME COURT REPORTS
[2007] 1 S.C.R.
2.6. Rule 20 of Judicial Service Rules requires the Commission to
call for interview such number of candidates, who in its opinion have
secured the minimum marks fixed by it. Because of application of scaling
system by the Commission, it has not been possible for the Commission to
fix such minimum marks either for individual subjects or for the aggregate.
In the absence of minimum marks, several candidates who secured less
than 30% in a subject have been selected. Thus scaling system adopted by
the Commission, contravenes Rule 20(1) also. [Para 22) [256-D, E, 257-A]
State of Bihar v. Bal Mukund Sah, [2000) 4 SCC 640; Union of India
v. Hansoli Devi, [2002) 7 SCC 273; Union of India v. Deoki Nandan
Aggarwal, [1992) Supp. 1 SCC 323, referred to.
3.1. Scaling system as adopted by the Commission is unsuited for the
Civil Judge (Junior Division) Examination. There is a need to evolve a
procedure to ensure uniformity inter-se the Examiners so that the effect of
'examiner subjectivity' or 'examiner variability' is minimised. The
D
procedure adopted to reduce examiner subjectivity or variability is known
as moderation. [Paras 23 and 35) [257-F, G, 272-A]
E
3.2 The procedure of 'moderation' would bring in considerable
uniformity and consistency. It should be noted that absolute uniformity or
consistency in valuation is impossible to achieve where there are several
examiners and the effort is only to achieve maximum uniformity.
[Para 23) [259-E]
3.3 ln the Judicial Service Examination, the candidates were required
to take the examination in respect of the all five subjects and the candidates
F
did not have any option in regard to the subjects. In such a situation,
moderation appears to be an ideal solution. But there are examinations
I
.
which have a competitive situation where candidates have the option
of selecting one or few among a variety of heterogenous subjects and
the number of students taking different options also vary and it
becomes necessary to prepare a common merit list in respect of
G
such candidates. [Para 24) [259-F-G)
H
3.4. Scaling places the scores from different tests or test forms on to
a common scale. There are different methods of statistical scoring. Standard
score method, linear standard score method, normalized equi-percentile
method are some of the recognized methods for scaling. [Para 24) [259-F-G]
'· '
+ ;
\
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 241
"Research on Examinations in India" by Edwin Harper Jr. & V Vidya
A
Sagar Misra, referred to.
3.5. Scaling is the exercise of putting the marks which are the results·
of different scales adopted in different subjects by different examiners into
a common scale so as to permit comparison of inter se. merit. By this
exercise, the raw marks awarded by the examiner in different subjects is
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
B
the 'scaled marks'. Scaling process, whereby raw marks in different
subjects are adjusted to a common scale, is a recognized method of
ensuring uniformity inter se among the candidates who have taken
C
examinations in different subjects, as, for example, the Civil Services
Examination. [Para 25] [260-G, H, 261-A, B]
3.6. The reason given for introducing scaling is to cure the disparity
on account of strictness or liberality of the examiners. But the effect of the
scaling formula adopted by the Commission is to average the marks of a
batch of candidates and convert the raw marks of each candidate in the
batch into scaled marks with reference to the average marks of the batch
and the standard deviation. The scaling formula therefore, does not address
D
or rectify the effect of strictness or liberality of the examiner. The scaling
formula is more suited and appropriate to find a common base and inter se
E
merit, where candidates take examinations in different subjects. As the
scaling formula has no nexus or relevance to give a solution to the problem
of eliminating the variation or deviation in the standard of valuation of
answer scripts by different examiners either on account of strictness or
liberality, it has to be concluded that scaling is based on irrelevant
F
considerations and ignores relevant considerations. [Para 32) [266-D, E, F]
3.7. There are apparent anomalies which show scaling of marks is
arbitrary. They are visible from award of high scaled marks to those who
secured zero marks, equalization of marks of persons who secured very
high marks, equalization of marks of persons who secured low marks,
inadequate mixing of answer scripts and improper distribution of answer
scripts. Low raw marks were further lowered (or made into '0') and higher
raw marks were further increased due to scaling. [Para 33)
G
3.8. When selections are made on the basis of the marks awarded, and
H
242
SUPREME COURT REPORTS
[2007] I S.C.R.
A
the inter se ranking depends on the marks awarded, treating unequals
equally, or giving huge marks to candidates who have secured zero marks
in some subjects make the process wholly irrational, virtually bordering
on arbitrariness. It is no doubt true that such irrationality may adversely
affect only those cases which are at either end of the spectrum, and if they
B
are excluded, by and large the scaling system may be functional. But ifthe
extreme cases are even 20 out of 5000 for each of the subjects, it becomes
100 for 5 subjects, which means that the results of as many as 100 are
likely to be affected. It may be more also. In that process, at least 5% to
10% of the vacancies are likely to be filled up by less meritorious
candidates. This will lead to considerable heart-burn and dissatisfaction.
C
When the object of the selection proeess is to try to select the best, and
even one mark may make the difference between selection or non-selection,
the system of scaling which has the effect of either reducing or increasing
the marks in an arbitrary manner will lead to unjust results. This is in
addition to the main disadvantage that scaling does not remedy the illD
effects of examiner variability arising out of strictness or liberality in
valuation. [Para 34] (271-E, F, G, H]
3.9. The Court has found after an examination of the manner in which
scaling system has been introduced and the effect thereof on the present
examination, that the system is not suitable. It is also concluded that there
E
was no proper or adequate study before introduction of scaling and the
scaling system which is primarily intended for preparing a common merit
list in regard to candidates who take examinations in different optional
subjects, has been inappropriately and mechanically applied to a situation
wber~ the need is to eliminate examiner variability on account of strict/
p
liberai valuation. The scaling system adopted by the Commission leads to
irrational results, and does not offer a solution for examiner variability
arising from strict/liberal examiners. The approval of the scaling system
is no longer valid. (Para 37) (274-F, G, H, 275-A)
G
UP. Public Service Commission v. Subhas Chandra Dixit, (2003) 12
SCC 701, Overruled.
Kamlesh Haribhai Goradia v. Union of India 1987 (1) Guj.LR 157,
upheld by Supreme Court by order dated 11.3.1987 in SLP (C) No. 14000/
1986; MuheshKumar Khandelwal v. State of Rajasthan, [1994) 1 Raj. LR
H
533 upheld by Supreme Court by order dated 22.1.1996 in SLP(c) No.
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SANJA Y SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD 243
15682-15684 of 1994 and K.Channegowda v. Karnataka Public Service
A
Commission, (2005] 12 SCC 688, distinguished.
3.10. There can be no doubt Courts will be slow to interfere with
matters affecting policy requiring technical expertise and leave them for
decision of experts. But manifest arbitrariness and irrationality is an
exception to the said principle. [Para 39] [275-G-H, 276-A]
State of UP v. Renusagar Power Co. Ltd., [1988] 4 SCC 59; Tata Iron
and Steel Co. Ltd. v. Union of India (1996] 9 SCC 709; Federation of
Railway Officers Association v. Union of India, [2003] 4 SCC 289,
distinguished.
'Research on Examinations in India by A. Edwin Harper & Vidya
Sagar Misra; 'Fundamental Statistics in Psychology and Education' by JP.
Guilford & Benjamin Fruchter pages 476-477; 'Scaling Techniques - what,
B
c
why and how' by V Natarajan & K. Gunasekaran; The Kothari Report,
D
1976 ('Policy & Selection Methods' published by UPSC, referred to.
4. It cannot be said that the petitions should be treated as being in
public interest and the entire selection process in regard to Civil Judge
(Junior Division) Examination, 2003 should be set aside. What has been
made out is certain inherent defects of a particular scaling system when
E
applied to the selection process of the Civil Judges (Junior Division) where
the problem is one of examiner variability (strict/liberal examiners). Neither
ma/a fides nor any other irregularities in the process of selection is made
out. The Commission has acted bona fide in pr<>ceeding with the selection
and neither the High Court nor the State Government had any grievance
F
in regard to selections. In fact, the scaling system applied had the seal of
approval of this Court in regard to the previous selection. The selected
candidates have also been appointed and functioning as Judicial Officers.
Further the scaling system adopted by the Commission has led to irrational
and arbitrary results only in cases falling at the ends of the spectrum, and
by and large did not affect the major portion of the selection. The decision
G
holding that the scaling system adopted by the Commission is unsuited in
regard to Civil Judge (Junior Division) Examination and directing
moderation, will be prospective in its application and will not affect the
selections and appointments already made in pursuance of the 2003
Examination. [Para 41] [276-B, C, D, E, F]
H
244
SUPREME COURT REPORTS
[2007] 1 S.C.R.
A
5. If the aggregate of raw marks in the written examination and the
B
c
D
marks in the interview of any petitioner is less than that of the last selected
candidate in the respective category, he will not be entitled to any relief.
Where the aggregate of raw marks in the written examination and the
interview marks of any petitioner, is more than the aggregate of the
raw marks in the written examination and interview marks of the last
selected candidate in his category, he shall be considered for appointment
in the respective category by counting his appointment against future
vacancies. This relief will be available only to such of the petitioners who
have approached this Court and the High Court before 31st August, 2005.
[Para 42) (277-B, C, DJ
CIVIL ORIGINAL JURISDICTION: Writ petition (Civil) No.165 of 2005.
Under Article 32 of the Constitution of India.
WITH
W.P. (C) Nos. 172, 409, 466 and 467 of 2005.
P.P. Rao, Shobha Dikshit, Ejaz Maqbool, Saurabh Kirpal, M.K. Bhardwaj,
K.L. Janjani, Debasis Misra, Y.P. Singh, C. Siddharth, P. Purnima, H. Devarajan,
E
P.N. Gupta, Jatin Zaveri, Shail Kumar Dwivedi, G.V. Rao, Abhishek Kumar,
Anshuman Ashok, Purushottam Tripathi, Pradeep Misra, S.W.A. Qadri (for
Mr. Kamlendra Mishra), Manoj K. Mishra, Anju, Sheela, Sanjay Visen, Amit
Yadav, Anish Kumar Gupta, Y.P. Singh, M.B. Aggarwal, for the appearing
parties and Sanjay Singh, Petitioner-in-person.
F
G
The Judgment of the Court was delivered by
RA VEENDRAN, J. : These petitions under Article 32 of the Constitution
of India have been filed by the unsuccessful candidates who appeared in
the examinations conducted by the Uttar Pradesh Public Service Commission
('Commission' for short) for recruitment to the posts of Civil Judge (Junior
Division).
2. On the request of the Allahabad High Court, to conduct the
examination for filling 347 posts of Civil Judge (Junior Division), the
H
Commission issued an advertisement in the Employment News dated
-I
SANJAY SINGH"· U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 245
28.11.2003. As many as 51524 candidates appeared for the "U .P. Judicial
Service Civil Judge, (Junior Division) Preliminary Examination, 2003"
conducted by the Commission on 21.3.2004. The preliminary examination
was of 'objective' type consisting of two papers General Knowledge and
Law. The result was declared on 30.6.2004 and 6046 candidates were
declared qualified to appear for the "U.P. Civil Judge (Junior Division)
Examination (Main), 2003" which was of 'descriptive' (conventional) type.
The Main examination consisted of five papers (each carrying 200 marks) -
General Knowledge, Language, Law I, II and III - and was held between 5th
and 7th October, 2004. The number of candidates who took the said
examination was 5748.
3. The answer scripts relating to each subject were distributed to
several examiners for valuation, as it was not possible to get the large
number evaluated by a single examiner. The number of examiners, to whom
the answer-scripts were distributed for valuation, were as follows : General
Knowledge 18, Language 14, Law-I 11, Law-II 10, and Law-Ill 14. The
marks assigned by the examiners were subjected to 'statistical scaling' and
the results of written examination based on such scaled marks, were declared
on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005
and 26.4.2005. After such interview, the Commission declared the final
results of the examination on 1.5.2005 based on the aggregate of 'scaled
marks' in the written (Main) examination and the marks awarded in the
interview: On the recommendations made by Commission, appointments
were made to 347 posts of Civil Judge, Junior Division.
4. The petitioners, who were unsuccessful, are aggrieved. They contend
that the statistical scaling system adopted by the Commission is illegal as
A
B
c
D
E
it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also
F
contend that conversion of their raw marks into scaled marks, is illegal as
it was done by applying an arbitrary, irrational and inappropriate scaling
formula. It is submitted that the Commission's exercise of subjecting the
marks secured by the candidates to scaling, has resulted in meritorious
students being ignored, and less meritorious students being awarded higher
G
marks and selected, thereby violating the fundamental rights of the candidates.
(4.1) W.P. [C] No.165/2005 was filed on 5.4.2005 even before the final
results were declared, praying (i) for a direction to the Commission not to
adopt the system of scaling and to declare the results of the Main
Examination on the basis of actual marks obtained by the candidates; and
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A
(ii) for a direction that the petition be heard by a Bench of three or more
Judges as the decision of a Bench of two Judges of this Court in UP. Public
Service Commission v. Subhash Chandra Dixit, [2003] 12 SCC 701 upholding
the system of scaling adopted by the Commission does not lay down the
correct law.
B
(4.2) The other petitions were filed after declaration of the final results,
in effect, for the following reliefs : (a) for quashing the results of the U.P.
Civil Judge (Junior Division) Main Examination-2003 declared on 7.3.2005
and the final results declared on 1.5.2005 on the basis of scaled marks and
direct the Commission to declare the results on the basis of actual marks
C
secured by the candidates; (b) to direct an inquiry by an independent
agency into the irregularities committed by the Commission in the said
examination; ( c) for a declaration that the use of' statistical scaling' in regard
to the examinations for the subordinate judiciary is unconstitutional; and (d)
to reconsider the law laid down in Subhash Chandra Dixit (supra).
D
5. The respondents raised the threshold bar of maintainability. It is
submitted that this Court in S. C. Dixit (supra), has rejected identical
grounds of attack and upheld the statistical scaling method adopted by the
Commission in the examination conducted in 2000. It is contended that the
prayers in these petitions under Article 32, in effect, seek setting aside or
E
review of the decision in S. C. Dixit, and that is impermissible. Reliance is
placed on the Constitution Bench decision of this Court in Rupa Ashok
Hurra v. Ashok Hurra, [2002] 4 SCC 388, to contend that a writ petition
under Article 32 would not lie to challenge any judgment of this Court or
that of a High Court, as superior courts are not 'State' within the meaning
F
of Article 12 and their judgments cannot be termed as violative of fundamental
rights. It is also pointed out that Review Petition (Civil) No. 162/2004 and
Curative Petition No.43/2004 filed in respect of S. C. Dixit (supra) were
rejected on 04.2.2004 and 6. I 0.2004 respectively.
G
H
6. In regard to merits, the Commission contended that the 'statistical
scaling' method adopted in regard to Civil Judge (Junior Division) Examination
is legal, scientific and sound and its policy to apply statistical scaling to
marks of written examination, was based on experts' opinion as also the
experience gained in conducting several examinations. It is submitted that
under the proviso to Rule 50 of the U.P .Public Service Commission (Procedure
and Conduct of Business) Rules, 197 6, it is entitled to adopt any formula or
i
, -
l
1·
SANJAY SINGH r. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN. J.) 247
method or device to eliminate variation in marks; that it found variation in
A
the marks awarded by different examiners on account of a phenomenon
known as 'examiner variability' and to eliminate it, statistical scaling was
introduced. It is further submitted that matters relating to the conduct of
Examination, evaluation of answer-scripts, application of methods to bring
in unifonnity in evaluatic,m are matters of policy involving technical and
scientific decisions based on expert opinion;
that courts are not equipped
to pronounce upon such matters and, therefore, should not interfere in the
absence of manifest arbitrariness or mala tides; and that, at all events, in
the absence of an opinion by a body of experts in the field of statistics
certifying that the system of scaling adopted by the Commission is unsound
B
and irrational, there should be no interference. Lastly, it is submitted that if
C
the court, for any reason, should hold that the existing scaling system
should be substituted, that should be done prospectively.
7. On the contentions urged, the following questions arise for our
consideration :
(i)
Whether the writ petitions are not maintainable ?
(ii)
Whether 'scaling' of marks is contrary to or prohibited by the
relevant rules ?
D
(iii)
Whether the 'scaling system' adopted by the Commission
E
is arbitrary and irrational, and whether the decision in
S. C. Dixit (supra) approving the 'scaling system' requires
reconsideration?
(iv) If the statistical scaling system is found to be illegal or
irrational or unsound, whether the selections already made,
F
which are the subject-matter of these petitions, should be
interfered with?
Re : Question (i) :
8. It is true that a judgment of this Court cannot be challenged in a
G
petition under Article 32. It can, however, be reviewed under Article 137 or
in exceptional circumstances reconsidered in exercise of inherent power, on
a curative petition (See Rupa Ashok Hurra). It is equally true that a final
judgment of a High Court can be challenged only by an appeal under
Articles 132 to 134 or by obtaining 'special leave' under Article 136 and not
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SUPREME COURT REPORTS
[2007] 1 S.C.R.
A
by a petition under Article 32. But that is not the issue here.
B
9. In regard to decisions of civil courts in suits governed by Civil
Procedure Code or appeals therefrom, the term 'judgment' refers to the
grounds of a decree or order, 'decree' refers to the formal expression of an
adjudication in a suit and 'order' refers to formal expression of any decision
of a civil court which is not a decree. In regard to the decisions of High
Court and Supreme Court in writ jurisdiction, the term 'judgment' is normally
used to refer to the 'judgment and order', that is the grounds for the
decision and the formal expression of the decision. The petitioners do not
seek to upset the 'order' part of the judgment in S. C. Dixit (supra) which
C
decided the validity of UP Civil Judge (Junior Division), Examination, 2000,
held under the UP Nyayik Sewa Niyamawali 1951. The grievance of the
petitioners is in regard to the UP Civil Judge (Junior Division) Examination,
2003, held under the UP Judicial Service Rules 2001. They, however, contend
that the ratio decidendi of the decision in S.C. Dixit
upholding
the
D
Commission's system of scaling of marks in written examination, requires
reconsideration. Therefore, these petittons are neither for 'review' nor for
'setting aside' or 'questioning' the decision in S.C. Dixit. Therefore, the bar,
referred to in Rupa Ashok Hurra, will not apply.
E
F
G
H
10. The contention of Commission also overlooks the fundamental
difference between challenge to the final order forming part of the judgment
and challenge to the ratio decide_ndi of the judgment. Broadly speaking,
every judgment of superior courts has three segments, namely, (i) the facts
and the point at issue; (ii) the reasons for the decision; and (iii) the final
order containing the decision. The reasons for the decision or the ratio
decidendi is not the final order containing the decision. In fact, in a
judgment of this Court, though the ratio decidendi may point to a particular
result, the decision (final order relating to relief) may be different and not
a natural consequence of the ratio decidendi of the judgment. This may
happen either on account of any subsequent event or the need to mould
the relief to do complete justice in the matter. It is the ratio decidendi of
a judgment and not the final order in the judgment, which forms a precedent.
The term 'judgment' and 'decision' are used, rather loosely, to refer to the
entire judgment or the final order or the ratio decidendi of a judgment. Rupa
Ashok Hurra (supra) is of course, an authority for the proposition that a
petition under Article 32 would not be maintainable to challenge or set aside
.,
.. '
I
SANJAY SINGH v. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RA VEENDRAN, J.] 249
or quash the final order contained in a judgment of this Court. It does not
A
r
lay down a proposition that the ratio decidendi of any earlier decision
cannot be examined or differed in another case. Where violation of a
·fundamental right of a citizen is alleged in a petition under Article 32, it
cannot be dismissed, as not maintainable, merely because it seeks to
distinguish or challenge the ratio decidendi of an earlier judgment, except
B
where it is between the same parties and in respect of the same cause of
action. Where a legal issue raised in a petition under Article 32 is covered
by a decision of this Court, the Court may dismiss the petition following the
.,
ratio decidendi of the earlier decision. Such dismissal is not on the ground
of 'maintainability' but on the ground that the issue raised is not tenable,
in view of the law laid down in the earlier decision. But if the court is c
satisfied that the issue raised in the later petition requires consideration and
in that context the earlier decision requires re-examination, the court can
certainly proceed to examine the matter (or refer the matter to a larger Bench,
if the earlier decision is not of a smaller Bench). When the issue is reexamined and a view is taken different from the one taken earlier, a new ratio
D
is laid down. When the ratio decidendi of the earlier decision undergoes
such change, the final order of the earlier decision as applicable to the
't
parties to the earlier decision, is in no way altered or disturbed. Therefore,
"
the contention that a writ petition under Article 32 is barred or not
maintainable with reference to an issue which is the subject-matter of an
earlier decision, is rejected.
E
-
Re : Question (ii) :
11. Article 234 of the Constitution requires appointments to the Judicial
Service of a State (other than District Judges) to be made by the Governor
F
y
of the State in accordance with the Rules made by him in that behalf, after
consultation with the State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State. The UP Judicial
Service Rules, 2001 (for short 'Judicial Service Rules') were made by the
Governor ofUttar Pradesh in exercise of powers conferred by Article 234 and
G
Article 309 of the Constitution, in consultation with the Commission and the
Allahabad High Court, to regulate the recruitment and appointment to Uttar
Pradesh Judicial Service. The Judicial Service Rules replaced the 'Uttar
Pradesh Nyayik Sewa Niyamawali, 1951' which was in force earlier. The
.-\-"
Judicial Service Rules were amended by the Uttar Pradesh Judicial Service
(Amendment) Rules, 2003.
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[2007] l S.C.R.
A
{ 11. l) Rule 7 of the Judicial Service Rules provides that recruitment to
B
c
D
E
F
G
H
the post of Civil Judge (Junior Division) shall be by direct recruitment on
the basis of a competitive examination conducted by Commission. Part V of
the said rules lays down the procedure for recruitment to Judicial Service.
Rule 16 provides for competitive examination and Rule 19 deals with the
syllabus. The said rules are extracted below :
"16. Competitive Examination -
The examination may be conducted
at such time and on such dates as may be notified by the
Commission and shall consist of -
(a) a written examination in such legal and allied subject including
procedure, as may be included in the Syllabus prescribed under rule
19, unless the same is otherwise modified by the Governor in
consultation with the court and the Commission;
(b) an examination to test the knowledge of the candidates in Hindi,
English and Urdu;
(c) an interview for assessing merit of the candidate giving due
regard to his ability, character, personality, physique and genera
suitability for appointment to the service.
19. Syllabus -
The syllabus and the rules relating to the competitive
examination shall be such as given in the Appendix II, provided
that the syllabus and rules may be amended by the Governor in
consultation with the Commission and Court."
Appendix II to the Rules contains the syllabus for the competitive examination.
It enumerates the details of the five subjects for the written examination and
the number of marks carried by each subject (200 each). It also provides for
a Personality Test (interview) to find out the suitability of the candidates
(carrying 100 marks). Note (i) to Appendix-II provides that "the marks
obtained in the interview will be added to the marks obtained in the written
papers and the candidate's place will depend on the aggregate of both".
12. Sub-Rule (1) of Rule 20 of the Judicial Service Rules requires the
Commission to prepare the result of the written examination and thereafter,
invite such number of candidates, who in the opinion of the commission
have secured minimum marks as may be fixed. Sub-Rule (2) provides for
1
y
/ ..
-f.
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SANJAY SINGH 1·. U.P. PUBLIC SERVICE COMMN. ALLAHABAD [RAVEENDRAN, J.] 251
participation of
a sitting Judge
in
the
interview of candidates.
Sub-rule (3) provides that the Commission shall prepare a final list of
selected candidates in order of their proficiency as disclosed by aggregates
of marks finally awarded to each candidate in the written examination and
the interview. The proviso thereto provides that if two or more candidates
obtain equal marks in the aggregate, the name of the candidate who is elder
in age shall be placed higher and where two or more candidates of equal age
obtain equal marks in the aggregate, the name of the candidate who has
obtained higher marks in the written examination shall be placed higher.