PRANAV VERMA & Ors. v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT & Anr.

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] PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

#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][66- G; 67-A-C] Ashok Kumar Yadav and Others v. State of Haryana (1985) 4 SCC 417 : [1985] 1 Suppl. SCR 657 – relied on. 47 A B C D E F G H 48 A B C D E F SUPREME COURT REPORTS [2019] 15 S.C.R.

#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 [2007] 1 SCR 235 (2013) 12 SCC 489 [2015] 2 SCR 480 referred to referred to referred to referred to [2018] 10 SCR 348 distinguished G [1982] 1 SCR 320 [2010] 7 SCR 189 referred to relied on [2004] 3 Suppl. SCR 372 referred to (2017) 11 SCC 456 referred to H Para 10.1 Para 13 Para 13 Para 13 Para 21 Para 23 Para 24 Para 25 Para 26 PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [1985] 1 Suppl. SCR 657 relied on (2008) 17 SCC 703 relied on Para 27 Para 28 CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 565 of 2019. [Under Article 32 of The Constitution of India] W.P. (C) No. 617/2019 and 651/2019 With 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 49 A B C D E F G H 50 A B C D E F G H SUPREME COURT REPORTS [2019] 15 S.C.R. 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 viva- voce 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 viva- voce 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 PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 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 Candidates appeared in Main Exam Candidates found fit for Viva Voce 1282 1195 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 51 A B C D E F G H SUPREME COURT REPORTS [2019] 15 S.C.R.

#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 52 A B C D E F G H PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 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 53 A B C D E F G H 54 A B C D E F G SUPREME COURT REPORTS [2019] 15 S.C.R. 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 H 1 (2017) 11 SCC 456 PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 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 viva- voce 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 55 A B C D E F G H 56 A B C D E F G SUPREME COURT REPORTS [2019] 15 S.C.R. 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? H 2 (2008) 17 SCC 703 PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 57 (iii) Whether re-valuation of Civil Law-I and Civil Law-II papers is required by an Independent Expert Committee? A (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