# TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH COURT OF DELHI

- **Citation:** [2018] 10 S.C.R. 348
- **Court:** Supreme Court of India
- **Decided:** 2018-02-16
- **Bench:** Arun Mishra, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/taniya-malik-v-the-registrar-general-of-the-high-court-of-delhi-32171
- **Pages:** 27

## Headnote

Judicial Service - Delhi Judicial Service Examination, 2015
- Revaluation of answer-sheet and moderation of marks - Petitioners
sought re-valuation of the answer-sheet of criminal law paper of
the main examination and further sought moderation of marks
obtained by the candidates in the examination of 2015 - Held:
Supreme Court in case of Sanjay Singh has laid down moderation to
be appropriate where there are multiple examiners of the same
subject - Where number of candidates are limited and only one
examiner evaluates, it is to be assumed that there will be uniformity
in valuation - In instant case, it is not disputed that only one
examiner had evaluated the same part of one subject, therefore, it
was not necessary to undertake the process of moderation - Insofar
revaluation of answer scripts are concerned, it is a settled
proposition of law that in the absence of provision for re-evaluation,
it cannot be ordered - Accordingly, for the examination in question,
in the absence of provision for revaluation when the examination
was held, it could not be resorted to - Delhi Judicial Services Rules,
1970 - Constitution of India - Art.32.
Judicial Service - Delhi Judicial Service Examination, 2015
- Minimum marks for viva voice - Reasonability of - One of the
petitioners was awarded 37% marks; whereas the required minimum
was 45% in viva voce - Total 64 candidates were called for interview
and 63 were selected - Only the said petitioner was declared failed
in the viva voce examination - Petitioner contended that the
provision prescribing minimum marks for viva voce of judicial
services is unreasonable - Held: In instant case, out of 64
[2018] 10 S.C.R. 348
348
A
B
C
D
E
F
G
H
349
candidates, only one has failed in the interview - That, in fact,
does not show the prejudice but is rather indicative of the fact that
performance of the petitioner was such that in spite of the Selection
Committee being most liberal, it did not find it appropriate to award
even the minimum passing marks to the said candidate - The
awarding of marks by Committee could not be said to be
inappropriate - Furthermore, in rules, the minimum cut off is
prescribed - That could not have been relaxed and moreover,
relaxation is a matter of policy and considering the overall
circumstances, importance of interview, the decision not to relax
cannot be said to be unreasonable.
Judicial Service - Delhi Judicial Service Examination, 2015
- Enhancement of marks by rounding off - Applicable or not - As
per advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to
be eligible to be called for interview - One of the petitioners had
obtained 49.9% marks and pleaded that it be rounded off to 50%
and called for an interview - Held: When a particular aggregate is
prescribed for eligibility, a person must meet the criteria without
relaxation - It is not permissible to enhance the marks by rounding
off method to make up the minimum aggregate - Thus, the principle
of rounding off method not to be applied in view of requirement to
obtain minimum aggregate marks to be called for interview in the
instant case.
Judicial Service - Delhi Judicial Service Examination, 2015
- Plea for reduction of minimum cut-off marks - As per
advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to
be eligible to be called for interview - One of the petitioners pleaded
to reduce the minimum cut off marks of individual subjects from
40% to 33% as she had failed only in one subject - Held: There is
no fault in prescribing the minimum passing marks for written papers
- It may happen in any examination that a person who is having
better aggregate may not fair well in one of the papers and may be
declared 'failed' - That cannot be ground to order relaxation or to
doubt the correctness of the evaluation process - No ground for
interference.
TANIYA MALIK v. THE REGISTRA

## Text

_Characters 0–39,732 of 61,759. This is a partial read: ask again with offset=39732 for what follows._

A
B
C
D
E
F
G
H
348
SUPREME COURT REPORTS
[2018] 10 S.C.R.
TANIYA MALIK
v.
THE REGISTRAR GENERAL OF THE HIGH COURT OF DELHI
(Writ Petition (Civil) No. 764 of 2017)
FEBRUARY 16, 2018
[ARUN MISHRA AND AMITAVA ROY, JJ.]
Judicial Service - Delhi Judicial Service Examination, 2015
- Revaluation of answer-sheet and moderation of marks - Petitioners
sought re-valuation of the answer-sheet of criminal law paper of
the main examination and further sought moderation of marks
obtained by the candidates in the examination of 2015 - Held:
Supreme Court in case of Sanjay Singh has laid down moderation to
be appropriate where there are multiple examiners of the same
subject - Where number of candidates are limited and only one
examiner evaluates, it is to be assumed that there will be uniformity
in valuation - In instant case, it is not disputed that only one
examiner had evaluated the same part of one subject, therefore, it
was not necessary to undertake the process of moderation - Insofar
revaluation of answer scripts are concerned, it is a settled
proposition of law that in the absence of provision for re-evaluation,
it cannot be ordered - Accordingly, for the examination in question,
in the absence of provision for revaluation when the examination
was held, it could not be resorted to - Delhi Judicial Services Rules,
1970 - Constitution of India - Art.32.
Judicial Service - Delhi Judicial Service Examination, 2015
- Minimum marks for viva voice - Reasonability of - One of the
petitioners was awarded 37% marks; whereas the required minimum
was 45% in viva voce - Total 64 candidates were called for interview
and 63 were selected - Only the said petitioner was declared failed
in the viva voce examination - Petitioner contended that the
provision prescribing minimum marks for viva voce of judicial
services is unreasonable - Held: In instant case, out of 64
[2018] 10 S.C.R. 348
348
A
B
C
D
E
F
G
H
349
candidates, only one has failed in the interview - That, in fact,
does not show the prejudice but is rather indicative of the fact that
performance of the petitioner was such that in spite of the Selection
Committee being most liberal, it did not find it appropriate to award
even the minimum passing marks to the said candidate - The
awarding of marks by Committee could not be said to be
inappropriate - Furthermore, in rules, the minimum cut off is
prescribed - That could not have been relaxed and moreover,
relaxation is a matter of policy and considering the overall
circumstances, importance of interview, the decision not to relax
cannot be said to be unreasonable.
Judicial Service - Delhi Judicial Service Examination, 2015
- Enhancement of marks by rounding off - Applicable or not - As
per advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to
be eligible to be called for interview - One of the petitioners had
obtained 49.9% marks and pleaded that it be rounded off to 50%
and called for an interview - Held: When a particular aggregate is
prescribed for eligibility, a person must meet the criteria without
relaxation - It is not permissible to enhance the marks by rounding
off method to make up the minimum aggregate - Thus, the principle
of rounding off method not to be applied in view of requirement to
obtain minimum aggregate marks to be called for interview in the
instant case.
Judicial Service - Delhi Judicial Service Examination, 2015
- Plea for reduction of minimum cut-off marks - As per
advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to
be eligible to be called for interview - One of the petitioners pleaded
to reduce the minimum cut off marks of individual subjects from
40% to 33% as she had failed only in one subject - Held: There is
no fault in prescribing the minimum passing marks for written papers
- It may happen in any examination that a person who is having
better aggregate may not fair well in one of the papers and may be
declared 'failed' - That cannot be ground to order relaxation or to
doubt the correctness of the evaluation process - No ground for
interference.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI
A
B
C
D
E
F
G
H
350
SUPREME COURT REPORTS
[2018] 10 S.C.R.
Dismissing the writ petitions, the Court
HELD: Whether moderation is required to be ordered.
1.1 Moderation is an appropriate method to bring about
uniformity in evaluation. When several examiners manually
evaluate answer-scripts of respective/conventional type question
papers in regard to the same subject, moderation is adopted as a
method to reduce examiner's variability. [Para 12] [358-A-B]
1.2 This Court in Sanjay Singh case has laid down
moderation to be appropriate where there are multiple examiners
of the same subject. It has also been observed that where a
number of candidates are limited and only one examiner will
evaluate, it is to be assumed that there will be uniformity in
valuation. That is only where several examiners evaluate the same
subject. There is difference in average marks and range of marks
awarded. There is a 'hawk-dove' effect. Some examiners are
liberal and they award more marks; some examiners are strict
and they give fewer marks, the same may be moderated. There
may be variance in degree of strictness and liberality. It is in
order to remove the subjectivity or variability, that the provision
of moderation is adopted. It is not the situation in the instant
case, hence, the decision in Sanjay Singh case rather than
buttressing negates the plea of moderation urged on behalf of
the petitioners. In the instant case as it is not disputed that only
one examiner had evaluated the same part of the one subject. It
was not necessary to undertake the process of moderation. [Paras
13 and 14] [361-C-D; 362-E-F]
Revaluation of answer-scripts
2. It is settled proposition of law that in the absence of
provision it cannot be ordered. In Mukesh Thakur case it was
laid down that in the absence of provision for re-evaluation it
cannot be resorted to and the observations which were made in
the case of CPIL v. Registrar General of High Court of Delhi case,
the decision was rendered in 2016 after the examination had
already been held, thus the provision for re-evaluation could not
have been introduced after the examination had been held. For
examination in question in the absence of provision for revaluation
A
B
C
D
E
F
G
H
351
when the examination was held, it could not be resorted to.
[Para 15] [362-F-G; 364-D-E]
Prescription of minimum pass marks in the viva voce examination
3.1 It is desirable to have the interview and it is necessary
to prescribe minimum passing marks for the same when the
appointment in the higher judiciary to the post of District Judge
is involved. The interview is the best method of judging the
performance, overall personality and the actual working
knowledge and capacity to perform otherwise the standard of
judiciary is likely to be compromised. A written examination only
tests academic knowledge, which is some time, gained without
possessing overall qualities, practical experience of practice and
law. [Para 17] [367-G-H; 368-A]
3.2 It was urged that out of 64 candidates, only one has
failed in the interview. That, in fact, does not show the prejudice
but is rather indicative of the fact that the performance of the
petitioner was such that in spite of the Committee being most
liberal, it did not find it appropriate to award even the minimum
passing marks to the said candidate. The awarding of marks by
the Committee could not be said to be inappropriate. In the instant
case in the rules, the minimum cut off is prescribed. That could
not have been relaxed and moreover, relaxation is a matter of
policy and considering the overall circumstances, importance of
interview, the decision not to relax cannot be said to be
unreasonable. [Para 18] [368-G-H; 369-A-D]
K.H. Siraj v. High Court of Kerala & Ors. [2006] 2
Suppl. SCR 790 : (2006) 6 SCC 395 - relied on.
Rounding off of the marks
5. When a particular aggregate is prescribed for eligibility,
a person must meet the criteria without relaxation. It is not
permissible to enhance the marks by rounding off method to make
up the minimum aggregate. Thus the principle of rounding off
method could not be applied in view of requirement to obtain
minimum aggregate marks to be called for interview in the instant
case. [Paras 20 and 22] [371-D; 373-D]
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI
A
B
C
D
E
F
G
H
352
SUPREME COURT REPORTS
[2018] 10 S.C.R.
Whether minimum cut off marks in the written examination be
relaxed from 40% to 33% and whether the Court should interfere
on the ground that as a person who has obtained the highest
marks, could not clear one of the papers by narrow margin of one
mark.
6. The minimum-passing marks in each of the paper could
have been prescribed and that is absolutely necessary so as to
adjudge the academic knowledge in various subjects. Merely by
scoring highest marks in general knowledge and language paper
is not going to help. Minimum knowledge in other subjects, civil
and criminal law was also requisite and that is true for vice versa
too, and that is why minimum passing marks had been prescribed
and fixation of 40% was quite reasonable and proper and it would
be not proper for this Court to interfere in the same. There is no
no fault in prescribing the minimum passing marks for written
papers. It may happen in any examination that a person who is
having better aggregate may not fair well in one of the papers
and may be declared 'failed'. That cannot be a ground to order
relaxation or to doubt the correctness of the evaluation process.
The marks of a candidate who secured highest marks were shown,
it became apparent that the performance of the candidate in paper
general knowledge and language was far better as compared to
the performance in civil and criminal papers. Thus when a single
examiner, has done valuation, same yardstick has been applied
to all the candidates. There are no grounds to make interference.
[Para 23] [373-F-G; 374-A-B]
Ajithkumar P. & Ors. v. Remin K.R. & Ors. (2015) 16
SCC 778 - held inapplicable.
Sujasha Mukherji v. The Hon'ble High Court of
Calcutta & Ors. [2015] 2 SCR 480 : (2015) 11 SCC
395; Himachal Pradesh Public Service Commission v.
Mukesh Thakur & Anr. [2010] 7 SCR 189 : (2010) 6
SCC 759; The Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore v. G. Hemlatha and Ors.
[2012] 8 SCR 157 : (2012) 8 SCC 568; Orissa Public
Service Commission & Anr. v. Rupashree Chowdhary
and Anr., [2011] 9 SCR 748 : (2011) 8 SCC 108 -
referred to.
A
B
C
D
E
F
G
H
353
Case Law Reference
(2015) 16 SCC 778
held inapplicable
Para 10
[2015] 2 SCR 480
referred to
Para 14
[2010] 7 SCR 189
referred to
Para 15
[2006] 2 Suppl. SCR 790
relied on
Para 16
[2012] 8 SCR 157
referred to
Para 21
[2011] 9 SCR 748
referred to
Para 21
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
764 of 2017
Under Article 32 of the Constitution of India
WITH
W. P. (C) No. 996, 896, 831, 832, 885, 938, 1046, 1063 and 1081
of 2017
W. P. (C) No. 39 of 2018.
R. S. Suri, R. Basant, Sanjay Hegde, Raju Ramachandran,
Sr. Advs., Kulbir Singh Mallik, Sandiv Kalia, Ms. Nabila Hasan, Lugman
S. Hasan (For Dr. Sushil Balwada), Nachiketa Joshi, Aviral Kashyap,
Ms. Reshmi Rea Sinha, Parveen Kumar Aggarwal, Sanjay Jain,
Ms. Jasmine Damkewala, Percival Billowria, Vikram Singh, Ms. Kimpok
Loya, Rajeev Sharma, Deepak Goel, Kamal Kumar Pandey, Pardeep
Gupta, Parinav Gupta, Ms. Mansi Gupta, Sanjauy Chakraborty, Wazir
Singh Malik (for Dr. (Mrs.) Vipin Gupta), Prashant Bhushan, Ms. Neha
Rathi, Pramit Saxena, Rahul Aggarwal, Amit Pratap Singh, Annam D.
N. Rao, A. Venkatesh, Sudipto Sircar, Rahul Mishra, Ms. Tulika Chikker,
Ishwar Mohanty, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The writ petitions have been filed under
Article 32 of the Constitution of India, questioning the Delhi Judicial
Service, 2015 Examination for which an advertisement was issued on
3.10.2015. 100 vacancies were advertised. The examination was to be
held in two stages - preliminary, thereafter, - main examination (written)
for selection of candidates for viva voce. Out of the 100 posts advertised,
68 were of the General Category; SC 12; ST 20; out of them 41, 7 and
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI
A
B
C
D
E
F
G
H
354
SUPREME COURT REPORTS
[2018] 10 S.C.R.
17 were the backlog vacancies of respective categories. Two vacancies
were reserved for physically handicapped (blind/low vision) and two
vacancies for physically handicapped candidates (Ortho.). The
appointments were to be subject to the outcome of W.P. (C) No. 514 of
2015 and C.A. No.1086 of 2013 pending in this Court and W.P. (C) No.
2828 of 2010 pending in the High Court of Delhi.
2. In Writ Petition[C] No.764 of 2017 - Taniya Malik v.
Registrar General of the High Court of Delhi, prayer has been made
to reduce the minimum cut off marks of individual subjects from 40% to
33% and in the alternative, the Delhi High Court be directed to relax the
criteria for calling for interview.
3. Petitioner has urged that result of the main examination was
announced on 12.7.2017. In the preliminary examination that was held,
out of 8534 candidates, 914 cleared it and they appeared in the main
examination. As per the advertisement, the candidates were required to
obtain 50% marks in aggregate and 40% in each subject in the main
examination to be eligible to be called for interview. The result of the
main examination was announced on 12.7.2017 and only 64 students, 58
from general category and 6 from reserved category were selected for
viva voce test. The petitioner contended that normally for an interview,
three times the number of incumbents are to be called as compared to
the number of seats notified as apparent from past practice. The petitioner
submitted a representation for rationalizing the minimum qualifying marks
to 33% instead of 40%. However needful was not done.
4. In W.P.[C] No.832 of 2017 prayer has been made to direct reevaluation of all the papers of the said examination by an independent
Expert Committee headed by a retired Judge of this Court. Alternative
prayer has been made to direct re-evaluation of the answer-sheet of
criminal law paper of the main examination of the petitioner. Prayer has
also been made to direct moderation of marks obtained by the candidates
in the Examination of 2015 in the light of the decision of this Court in
Sanjay Singh & Anr. v. U.P. Public Service Commission, Allahabad
& Anr. (2007) 3 SCC 720, and to quash the criteria of calling for viva
voce for those candidates who had obtained 40% marks in each written
paper as provided under Rule 15 of the Delhi Judicial Services Rules,
1970. It is averred that as only a minuscule number of 24 candidates
could obtain more than 50% marks in Criminal Law paper, prima facie
A
B
C
D
E
F
G
H
355
it appears that Criminal Law paper has been very strictly marked and
marks given do not reflect the actual performance of the candidates.
5. In W.P. [C] No.996 of 2017 - Ms. Swati Gupta v. Registrar
General, High Court of Delhi, a prayer has been made to quash the
result of the examination and prayer for revaluation of the papers has
been made. Petitioner has obtained 49.9% marks. She has prayed that it
be rounded off to 50% as is normally done and she should be called for
interview.
6. In WP [C] No.1081 of 2017 - Naveen v. Registrar General,
High Court of Delhi, prayer has been made to set aside the result of
viva voce dated 25.9.2017 so far as the petitioner has been declared not
qualified in viva voce test and to declare him qualified for selection on
the vacant post available in his reserved category or to conduct fresh
viva voce and the provision prescribing minimum marks for viva voce of
judicial services is unreasonable. Petitioner has been awarded 37%
marks; whereas the required minimum was 45% marks in viva voce.
Total 64 candidates were called for interview as against 100 vacancies
that were advertised and 63 have been selected. Only the petitioner had
been declared failed in the viva voce examination. The High Court should
have relaxed the marks for interview. In rest of petitions, the relief prayed
is more or less similar to aforesaid writ petitions.
7. In the counter affidavit filed by the Registrar General of High
Court Delhi, it is contended that after participating in the process of
selection under the Delhi Judicial Services Rules, 1970 (for short, 'the
1970 Rules'), it is not open to question the process of the examination.
The preliminary examination is a screening test carrying maximum marks
of 200. Minimum qualifying marks in the preliminary examination were
60% for general and 55 for reserved categories. The main examination
(written) consisted of 4 papers, namely, G.K. & Language, Civil Law-I,
Civil Law-II and Criminal Law and carried a weightage of 250, 200, 200
and 200 marks respectively. Each paper is divided into two parts, viz.,
Part A and Part B. A separate individual examiner examined each part
of all the papers. There were no multiple examiners for each part.It was
necessary to obtain minimum 40% marks and 35% marks respectively
in each of the four papers; total of Part A and Part B, and also secure at
least 50% marks and 45% marks respectively in aggregate in all the
four papers in order to qualify for the next stage i.e. viva voce.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
356
SUPREME COURT REPORTS
[2018] 10 S.C.R.
8. It is further pleaded that calling the number of candidates would
depend upon the number of qualified candidates in the written
examination. Unqualified candidates could not have been called for
interview. Senior-most officers of the Delhi Higher Judicial Services
were responsible for setting up of the examination papers and evaluating
the answer-sheets. As a separate individual examiner did the evaluation,
the question of moderation/rationalization as demanded by the petitioners
did not arise. The practice adopted for evaluation of answer sheet is that
the roll number is kept secret from the examiner. A code number is
written on both sides of the first page of answer-sheet. Copies of answersheets were supplied to the petitioner after the declaration of the result.
In CPIL v. Registrar General of High Court of Delhi in W.P. [C]
No.514 of 2015, the suggestions given by this Court were to be kept in
view for future examinations. The order was passed on 26.7.2016 much
after the main examination had been held. The modalities of the
examination had been worked out much before the decision of this Court
in the said matter. Thus, it was not possible to implement the said decision.
There is no procedure or provision for revaluation of answer-sheets in
the said examination held for 2015 vacancies under the 1970 Rules. No
model answers were provided to the examiners.
9. In the case of Naveen v. Registrar General, High Court of
Delhi, W.P. [C] No.1081 of 2017 it is the stand taken that viva voce
carries 150 marks; candidates in General Category must secure 50%
marks and candidates of Reserved Category must secure 45% marks to
be eligible for recommendation for appointment to the service. The marks
obtained in the viva voce were to be added to the marks obtained in the
main examination to determine the merit position of the successful
candidates. The petitioner secured only 55 marks out of 150 marks, i.e.
37%, hence, was not eligible for being recommended for appointment to
the service. Even though all the vacancies could not be filled, it does not
imply that the cut off of 45% marks fixed for interview should be removed.
Fixation of cut off marks could not be said to be arbitrary or unreasonable.
Viva-voce plays an important role in judging candidates' caliber/personality,
perception and suitability.
10. Learned counsel appearing for the petitioners urged that fixation
of 40% cut off marks in written paper was not appropriate. Even the
candidate who has secured the highest marks could not obtain the requisite
minimum marks in one of the papers and missed by a whisker i.e. by
A
B
C
D
E
F
G
H
357
one mark. There was an unduly harsh marking of criminal law paper.
Only a few candidates could obtain more than 50% marks. It does not
sound to logic that the candidate who has obtained highest marks in
aggregate, would fail in one of the papers, thus the case is fit for directing
the moderation as held in Sanjay Singh (supra) and Ajithkumar P. &
Ors. v. Remin K.R. & Ors. (2015) 16 SCC 778. Reliance has also been
placed on the decision in Sujasha Mukherji v. The Hon'ble High Court
of Calcutta & Ors. (2015) 11 SCC 395. Prayer has also been made to
reduce the cut off in written papers to 33% from 40%. In the case of
Swati Gupta (supra), additional ground has been urged to round off the
marks from 49.9% to 50% to make her eligible for viva voce. In the
case of WP [C] No.832/2017 - Charu Dhankar v. Registrar General
of the High Court of Delhi, in addition, it was urged that revaluation of
answer-sheets of criminal law paper be ordered and the requirement of
obtaining 40% marks be set aside. In the case of Naveen v. Registrar
General, High Court of Delhi, a prayer has been made not to fix the
minimum marks for viva voce. It was urged that fixation of minimum
passing marks in interview was unreasonable and alternative prayer has
been made to relax the minimum passing marks for the SC category
candidates for selection. It was urged that petitioner was the only person
who has failed in the interview. Out of 64 candidates, 63 had been cleared
in interview.
11. Per contra, it was contended on behalf of the High Court of
Delhi that in case of Sanjay Singh (supra), there were multiple examiners
as such moderation was ordered. In case where a single examiner has
examined all the papers, moderation is not at all required. Minimum pass
marks have been fixed considering the importance of the Higher Judicial
Service and as the appointment was to be made on the post of Higher
Judicial Service. Minimum marks for interview were also rightly
prescribed. In the written examination it was necessary to obtain aggregate
of 50% for General Category, thus there was no question of rounding
off. A candidate who obtains lesser marks than the minimum prescribed
for aggregate could not have been called for interview by the process of
rounding off. Lower marks were prescribed for reserved category
candidates as compared to General Category candidates. For General
Category, passing marks in interview were 50% whereas passing marks
for reserved category candidates were 45%.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
358
SUPREME COURT REPORTS
[2018] 10 S.C.R.
12. First we take up the question whether moderation is required
to be ordered. Moderation is an appropriate method to bring about
uniformity in evaluation. When several examiners manually evaluate
answer-scripts of respective/conventional type question papers in regard
to the same subject, moderation is adopted as a method to reduce
examiner's variability. For the purpose of issuance of direction for
moderation reliance has been placed on the decision of this Court in
Sanjay Singh (supra) in which, it was observed:
"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 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 answer-scripts. Inevitably therefore, even when
experienced examiners receive equal batches of answer scripts,
there is difference in average marks and the range of marks
awarded, thereby affecting the merit of individual candidates. This
apart, there is 'Hawk-Dove' effect. Some examiners are liberal
in valuation and tend to award more marks. Some examiners are
strict and tend to give less marks. Some may be moderate and
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
A
B
C
D
E
F
G
H
359
'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 interse 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. 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
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
360
SUPREME COURT REPORTS
[2018] 10 S.C.R.
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 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.
A
B
C
D
E
F
G
H
361
27. But some Examining Authorities, like the Commission, are of
the view that scaling can be used, not only where there is a need
to find a common base across different subjects (that is bringing
the performance in different subjects to a common scale), but
also as an alternative to moderation, to reduce examiner variability
(that is where different examiners evaluate answer scripts relating
to the same subject)."
13. This Court in Sanjay Singh (supra) has laid down moderation
to be appropriate where there are multiple examiners of the same subject.
It has also been observed that where a number of candidates are limited
and only one examiner will evaluate, it is to be assumed that there will be
uniformity in valuation. That is only where several examiners evaluate
the same subject. There is difference in average marks and range of
marks awarded. There is a 'hawk-dove' effect. Some examiners are
liberal and they award more marks; some examiners are strict and they
give fewer marks, the same may be moderated. There may be variance
in degree of strictness and liberality. It is in order to remove the
subjectivity or variability, that the provision of moderation is adopted. It
is not the situation in the instant case, hence, the decision in Sanjay
Singh (supra) rather than buttressing negates the plea of moderation
urged on behalf of the petitioners.
14. In relation to plea of moderation, reliance has also been placed
on the decision of this Court in Sujasha Mukherji v. High Court of
Calcutta through Registrar & Ors. (2015) 11 SCC 395. In the said
case there were three examiners i.e. multiple examiners and moderation
had not been adopted. Only re-assessment was carried out. The proper
mode of moderation was not followed as observed in Sanjay Singh
(supra). Mean marks were not computed to liquidate 'hawk-dove'
syndrome. Marks awarded by the first examiner were more or less
unchanged as compared to other. In the said context, this Court in
Sujasha Mukherjee (supra) has observed:
"11. Revaluation as envisaged in the paragraph 23 of Sanjay Singh
v. U.P. Public Service Commission (2007) 3 SCC 720 has to be
undertaken by the Head Examiner/Paper Setter who, as has
already been noted, is non-existent in the present case. The effort
would be to eradicate the 'hawk-dove' syndrome, and this is
achieved by computing the 'mean' and, thereafter, to add or deduct,
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
362
SUPREME COURT REPORTS
[2018] 10 S.C.R.
across the board, in all the Answer-sheets. It cannot be disputed
that this is not what has transpired in the present case since quite
apparently moderation has been carried out in respect of the
assessment/marking of the 2nd Examiner and that too in Paper
No. II. So far as most of the candidates whose answer scripts
had been reassessed afresh, the reduction averages 10 marks
which, therefore, constitutes the mean. Therefore, the deduction
of as many as 18 marks so far as the Appellant is concerned is
not logical or justified as a consequence of moderation. We also
think that a moderator should give a long and serious thought to
the correctness of his assessment on the realization he finds that
the top-most candidate stands disqualified by the purported
exercise of moderation. As we have already noted above, instead
of deducting 18 marks if even 15 marks had been deducted, the
Appellant who has scored the highest marks before moderation
and the second highest marks even after moderation, would have
qualified for being called to the Interview/viva voce. A grave
injustice has been caused to the Appellant. The learned Division
Bench should have been alive to this injustice since it had before
it the judicial determination of the learned Single Judge. We shall
abjure from making any further observation."
It is apparent that in Sujasha Mukherjee (supra) the method of
moderation as envisaged in Sanjay Singh (supra) was not followed. As
such this Court interfered. However, in the instant case as it is not disputed
that only one examiner had evaluated the same part of the one subject.
In our considered opinion it was not necessary to undertake the process
of moderation.
15. Now we take up the second submission with respect to
revaluation of answer-scripts. It is settled proposition of law that in the
absence of provision it cannot be ordered. In Himachal Pradesh Public
Service Commission v. Mukesh Thakur & Anr. (2010) 6 SCC 759,
this Court has considered various decisions and observed:
"24. The issue of revaluation of answer book is no more res integra.
This issue was considered at length by this Court in Maharashtra
State Board of Secondary and Higher Secondary Education and
Anr. v. ParitoshBhupeshKurmarsheth wherein this Court rejected
the contention that in absence of provision for re-evaluation, a
A
B
C
D
E
F
G
H
363
direction to this effect can be issued by the Court. The Court
further held that even the policy decision incorporated in the Rules/
Regulations not providing for rechecking/verification/re-evaluation
cannot be challenged unless there are grounds to show that the
policy itself is in violation of some statutory provision. The Court
held as under: (SCC pp. 39-40 & 42, paras 14 & 16)
"14. ...It is exclusively within the province of the legislature
and its delegate to determine, as a matter of policy, how the
provisions of the Statute can best be implemented and what
measures, substantive as well as procedural would have to be
incorporated in the rules or regulations for the efficacious
achievement of the objects and purposes of the Act...
X xxxx
16. ...The Court cannot sit in judgment over the wisdom of the
policy evolved by the legislature and the subordinate regulationmaking body. It may be a wise policy which will fully effectuate
the purpose of the enactment or it may be lacking in
effectiveness and hence calling for revision and improvement.
But any draw-backs in the policy incorporated in a rule or
regulation will not render it ultra vires and the Court cannot
strike it down on the ground that in its opinion, it is not a wise
or prudent policy, but is even a foolish one, and that it will not
really serve to effectuate the purposes of the Act. "
25. This view has been approved and relied upon and re-iterated
by this Court in Pramod Kumar Srivastava v. Bihar Public Service
Commission, (2004) 6 SCC 714 observing as under: (SCC pp.
717-18, para 7)
"7. ....Under the relevant rules of the Commission, there is no
provision wherein a candidate may be entitled to ask for reevaluation of his answer-book. There is a provision for scrutiny
only wherein the answer-books are seen for the purpose of
checking whether all the answers given by a candidate have
been examined and whether there has been any mistake in the
totaling of marks of each question and noting them correctly
on the first cover page of the answer-book. There is no dispute
that after scrutiny no mistake was found in the marks awarded
to the appellant in the General Science paper. In the absence
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
A
B
C
D
E
F
G
H
364
SUPREME COURT REPORTS
[2018] 10 S.C.R.
of any provision for re-evaluation of answer-books in the
relevant rules, no candidate in an examination has got any right
whatsoever to claim or ask for re-evaluation of his marks."
 (emphasis added)
A similar view has been reiterated in Dr. Muneeb-Ul-Rehman
Haroon (Dr.) v. Govt. of J&K State (1984)4 SCC 24; Board of
Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383;
Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603;
W.B. Council of Higher Secondary Education v. Ayan Das
(2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health
Sciences (2009) 1 SCC 599.
26. Thus, the law on the subject emerges to the effect that in
absence of any provision under the Statute or Statutory Rules/
Regulations, the Court should not generally direct revaluation."
In Mukesh Thakur (supra) it was laid down that in the absence
of provision for re-evaluation it cannot be resorted to and the observations
which were made in the case of CPIL v. Registrar General of High
Court of Delhi (supra), the decision was rendered in 2016 after the
examination had already been held, thus the provision for re-evaluation
could not have been introduced after the examination had been held. In
our opinion, for examination in question in the absence of provision for
revaluation when the examination was held, it could not be resorted to.
16. Coming to the question of prescribing the minimum pass marks
in the viva voce examination, in our opinion it is rightly observed by this
Court in K.H. Siraj v. High Court of Kerala & Ors. (2006) 6 SCC
395, that interview is the best method to assess the ability of the candidate
and to judge the capacity and minimum marks can also be prescribed. In
case a candidate fails in an interview it cannot be said that he is suitable
for the job of a Munsif Magistrate. This Court observed:
"54. In our opinion, the interview is the best mode of assessing
the suitability of a candidate for a particular position. While the
written examination will testify the candidates' academic
knowledge, the oral test alone can bring out or disclose his overall
intellectual and personal qualities like alertness, resourcefulness,
dependability, capacity for discussion, ability to take decisions,
qualities of leadership etc. which are also essential for a judicial
officer.
A
B
C
D
E
F
G
H
365
55. We may usefully refer to a decision of this Court in Lila Dhar
v.