STATE OF UTTAR PRADESH & Ors. v. ATUL KUMAR DWIVEDI & Ors.

From the Judgment and Order dated 11.09.2019 of the High Court of Judicature at Allahabad in W. A. No.23733 of 2018. With Civil Appeal Nos. 229, 230, 231, 232, 233, 234 and 235 of 2022. Tushar Mehta, SG, Vinod Diwakar, AAG, Vinay Navare, Pallav Shishodia, Ms. Vibha Datta Makhija, V. Giri, P. S. Patwalia, Dr. A. M. Singhvi, Rakesh Dwivedi, Kapil Sibal, Ms. Meenakshi Arora, Dr. Rajiv Dhavan, Harish N. Salve, Sr. Advs., Akshat Srivastava, Krishna M. Singh, Rajiv Kumar, Sanjeev Gupta, D. K. Devesh, Ms. Pooja, Ravi Shanker Jha, Durga Dutt, Rohit Priyadarshi, Dr. Sushma Singh, Rakesh Kumar Singh, Somesh Kumar Dubey, Amarendra Choubey, Upendra Narayan Mishra, Kousik Ghosh, Ms. Shuchi Singh, Krishna Kant Dubey, Jainendra Kumar Ojha, Sanjay Kumar Dubey, Rakesh Kumar Tewari, Prashant Shukla, Suyash Srivastava, F G H STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI Madhumay Mishra, Anurag Tripathi, Satyajeet Kumar, Priyank Upadhyay, Manoj K. Mishra, Umesh Dubey, D. N. Dubey, Sudhir Rawat, Dr. Bheem Pratap Singh, R. K. Singh, Mrs. Neeraj Singh, Kumar Gaurav, Ms. Ritu Reniwal, Ms. Anzu K. Varkey, Aman Rastogi, Sanjay Rastogi, Robin Khokhar, Mahendra Kumawat, Arvind Aggarwal, Anas Tanwir, Sachin Upadhyay, Shivendra Rathore, Ms. Garima Prasad, Sanjay Kapur, V. M. Kannan, Ms. Megha Karnwal, Amit, Surendra Singh Rana, Ikshit Singhal, Vipin Sandu, Ms. Vani Vyas, Jeetendra Kumar, Ashutosh Chaturvedi, Maneesh Saxena, Anbarasan Nathar Paul, Raghvendra Shukla, Ms. Bhanu Priya Sharma for M/s Mukesh Kumar Singh & Co., Tom Joseph, Rohit Amit Sthalekar, Sankalp Narain, Ms. Pallavi Pratap, Ms. Prachi Pratap, Bhav Ratan, Ms. Madhavi Khanna, M/s Pratap & Co., D. K. Garg, Dhananjay Garg, Abhishek Garg, Chanakya Gupta, M. P. Parthiban, Md. Saquib Siddiqui, Ms. Priyanka Singh, Ms. Shagun Thakur, Amod Kumar Bidhuri, Raghwendra Tiwari, Ms. Mamta Tiwari, Ravi Mishra, Ajay Kumar, Abhishek Verma, Ms. Amrita Kumari, Abbula Kalam, Satish Pandey, Abdul Qadir, Dr. Brij Bhushan K. Jauhari, Gaurav Yadav, Lalit Chahar, Ms. Purnima Jauhari, Harsh Mahan, O. P. Singh, Arvind Kumar Shukla, Ms. Preetika Dwivedi, Prashant Mishra, Prakhar Saran, Tarun Agrawal, Ms. Anuroop Chakravarti, Purushottam Sharma Tripathi, Ravi Chandra Prakash, Abhishek Tripathi, Ms. Sushma Vyas, Adit Pujari, Ms. Sujata Muni, Manish Kumar Gupta, Shashank Singh, Romil Pathak, Arvind C., Vinay Bhardwaj, Amit Kumar, Prashant Chaturvedi, Anand Sharma, Dr. Ashwani Bhardwaj, A. Dev Kumar, Vipin Sharma, Atulesh Kumar, Pradeep Kumar Yadav, Vishal Thakre, Abhay Singh Yadav, Rudra Pratap Yadav, S. B. Khan, Sanjeev Malhotra, Ms. Bansuri Swaraj, Sanjay Kr. Yadav, Rakesh Kumar, Divhyash Tiwari, Binod Kumar Singh, Ravi Shanker Jha, Shish Pal Laler, Ravi Panwar, Anand Mishra, Amrendra Kumar Singh, Ms. Shivangi Popli, Vivek Sharma, Ms. Rachana Sharma, Kaushal Yadav, Sandeep Mishra, Nandlal Kumar Mishra, Ms. Shweta Yadav, Dr. Ajay Kumar, M. Shoeb Alam, Amit K. Ranjan, Pinkesh Kumar, Mojahid Karim Khan, Ms. Akansha Rai, Ms. Apeksha Rai, Ms. Yashoda Katiyar, Ms. Kritya Pandey, Krishna M. Singh, Vishal Singhal, Ravleen Chhabra, Anand Nandan, Hassan Zubair Waris, Amit Pawan, Ms. Nidhi Agarwal, Pankaj Sharma, Neeraj Kumar Sharma, Manish Vashistha, Dr. B. Ramaswamy, Danish Zubair Khan, Mukesh Kumar, Ms. Richa Kapoor, Kunal Anand, Badri Prasad Singh, Shivendra Singh, Pradeep Misra, Randhir Kumar Ojha, Advs. for the Appellants. 35 A B C D E F G H 36 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. The Judgment of the Court was delivered by UDAY UMESH LALIT, J. Leave granted.

1. These appeals arise out of the final judgment and order dated

11.09.2019 passed by the High Court1.

2. A notification was published by the State Government inviting online application forms from male candidates for filling up 2400 posts of Sub-Inspector of Police, 210 posts of Platoon Commander (PAC2) and 97 posts of Fire Officer (Grade-II) in Uttar Pradesh Police. The procedure for recruitment contemplated Online Written Examination, Physical Standard Test and Physical Fitness Test whereafter the final list of selected candidates would be published. The relevant portion of the notification dealing with online written examination was as under: “4. Procedure of Recruitment This recruitment is done under Uttar Pradesh Sub Inspector and Inspector (Police) Service (1st Amendment) Rulebook – 2015.

4.1 Online Written Examination All the applicants whose application have been found to be correct and accepted will be expected to take up a 400 marks online written examination. This examination will contain question based on 4 subjects listed below and will be based on multiple choice type questions. Applicants who will fail to score a minimum of 50 percent marks in the test will not be eligible for recruitment. Depending on the number of applicants the written examination will be carried out 1 High Court of Judicature at Allahabad in Writ Application No.23733 of 2018 and all other connected matters. 2 Provincial Armed Constabulary. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] on one day and one session, or on one day multiple sessions or on multiple days multiple sessions. For each session the question paper will be different. The course for the online examination is in Annexure-1. If after completion of online examination and being invited by the board the applicant makes any objection then he has to pay a pre-determined charge. If the objection has been found to be true then the amount will be refunded.”

2.1 Similar notification was published on the same date with respect to 600 posts of Sub-Inspector (Nagrik Police) for female candidates. The recruitment procedure was dealt with in Para 4 of the notification and the portion dealing with “Online Written Examination” was identical to Para 4.1 quoted hereinabove.

3. In response to these advertisements, 6,30,926 applicants submitted their online application forms. Considering the large number of candidates who had offered their candidature, a notification was published on 28.6.2017, the translated portion of which was as under:

3. “NOTICE/ RELEASE No.PRPB-Anu-6-P-18/2016 Dated: June 28, 2017 For the Males for the Direct Recruitment 2016 on the posts of the Sub-Inspector (Nagrik Police), Platoon Commander PAC and Fire Brigade Second Officers and for filling up 2400 posts for the Sub-Inspector (Nagrik Police), 210 posts for the Platoon Commander PAC and 97 posts for the Fire Brigade Second Officer from the Males candidates online application was invited. Similarly for the Females for the post of Sub-Inspector (Nagrik Police) under the Direct Recruitment – 2016 in the Uttar Pradesh Police for the 600 posts for filing up the posts for the Sub-Inspector (Nagrik Police) from the Females candidates online application was invited. For the Males on the posts of Sub-Inspector (Nagrik Police), Platoon Commander, PAC and Fire Brigade Second Officers under the Direct Recruitment-2016 total 5,42,124 candidates and for the Females for the filling up the post for the Sub-Inspector (Nagrik Police) under the Direct Recruitment-2016, 88,802 viz. total 6,30,926 candidates had applied. 37 A B C D E F G H 38 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R.

4. On the posts of Sub-Inspector (Nagrik Police), Platoon Commander PAC and Fire Brigade Second Officer in the direct online written examination on the basis of the seniority of the received marks this examination is being run/ organized. In accordance with the number of the candidates the online written examination in more than one date in the different sitting along with the different questions papers the need has come for getting organized the same. The question paper of every sitting will be different in which there may not be possibility of equality and keeping in view the same in the different questions paper by the candidates the Normalisation of the received marks “MAH-MBA/ MMS CET 2015” by the used Standardized Equi-percentile method it will be done.

5. The construction of the question paper of the online written examination will be as under:-

8. In the question paper total 160 questions will be there. For every question there will be four alternative answers, in which the candidates will select one out of four alternative answers which the candidate feels it correct. For every question select only one answer and fill up online answer. For every correct answer 2.50 marks is fixed or for any incorrect answer no negative marking will be done there. In any subject in case of cancelling of any question the valuation procedure in the Writ Petition No.2669/2009 (MB) STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.]

10. – Pawan Kumar Agrahari vs. Uttar Pradesh Public Service Commission by the Hon’ble High Court it will be done in accordance with the established law and order. In every subject in receiving 50% marks the candidate who failed to do so for the recruitment procedure he will not be eligible. In the question paper leaving the general Hindi subject the question paper of other subjects there will be in Hindi and English Language. Any question in other native language on the login screen it will be selected it may be seen. In case of any doubts the English translation will be acceptable……”

4. Paragraph 4 of the notification dated 28.06.2017 thus stated that normalization of marks received, would be done as per “Standardized Equi-percentile method” used in MAH-MBA/MMS CET 2015. It may therefore be relevant at this stage to set out relevant instructions pertaining to MAH-MBA/MMS CET 2015. The instructions issued by the Directorate of Technical Education, Maharashtra State, Mumbai for holding the online Common Entrance Test were:- 39 A B C D “Instructions for Registration for MAH-MBA/MMS-CET 2015 by candidate: E

1. MAH-MBA/MMS-CET 2015 shall be conducted only in the ONLINE mode in multiple sessions. Competent Authority, using standardized equi-percentile method, will be equating scores across sessions. … … …” The information brochure dealt with issue of arriving at the equated score as under: “(i) (ii) Number of questions answered correctly by a candidate in each objective test is considered for arriving at the Corrected Score. The Corrected Scores so obtained by a candidate are made equivalent to take care of the minor difference in difficulty level, if any, in each of the objective test held in different sessions to arrive at the Equated Scores.* F G H 40 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. *Scores obtained by candidates on any test are equated to the base form by considering the distribution of scores of all the forms. (iii) testwise scores and scores on total is reported with decimal points upto two digits. Please note that the types of questions shown here are only illustrative and not exhaustive. In the actual examination you will find questions of a higher difficulty level on some or all of these types and also questions on the types not mentioned here.”

5. Written examination was held between 12th to 23rd December, 2017 in 29 different sittings. In other words, 29 different batches of students appeared for the written examination where the question papers were different. After the completion of written examination, 11741 students were called for further stages to participate in “Physical Standards Test” and “Physical Efficiency Test”. This number comprised of 5461 candidates who had secured more than 50% actual marks in the written examination which shall hereafter be referred to as “raw marks”; while 5713 candidates had secured more than 50% marks after the process of normalization as set out in para 4 of the Notification dated 28.06.2017 was adopted, which marks shall hereafter be referred to as “normalized score”. All these 11741 candidates were allowed to take part in the further stages of the process of selection.

6. In October, 2018, Writ Petition No.23733 of 2018 was filed in the High Court by certain candidates who had secured more than 50% raw marks submitting inter alia that the Board3 had wrongly applied the normalization process by issuing call letters to all those candidates who had not obtained more than 50% raw marks but had secured more than 50% normalized score. It was submitted that the candidates who had not secured more than 50% raw marks but could cross 50% only with the help of normalized score could not be included in the list of qualified candidates and were required to be excluded from the process of selection. In the affidavit in reply filed by the Member Secretary of the Board3 to said writ petition, it was stated :- 3 Uttar Pradesh Police Recruitment and Promotion Board, Lucknow. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] “10. That in the present selection all the candidates who has obtained 50% marks either in the category of raw marks or after the process of normalization in each of the subject such candidates has been declared successful for next stage of recruitment such as document verification and physical standard test and the aforesaid process of normalization is being adopted by the Board in accordance with law and as the present writ petition as framed is devoid of any merits and the grounds taken therein have no force and as such the present writ petition is liable to be dismissed.”

7. On 28.02.2019, the final result of the selection process was declared which comprised of eight lists as under:- “(i) List 1 – List of 2181 selected candidates for the post of Sub Inspector (Civil Police), Platoon Commander PAC and Fireman Second Officer. (ii) List 2 – A joint merit list of 2181 selected candidates for Sub Inspector (Police), Platoon Commander PAC and Fireman Second Officer. (iii) List 3 - A joint merit list of 2181 selected candidates for Sub Inspector (Civil Police), Platoon Commander PAC and Fireman – Second Officer categories. (iv) List 4 – A list of 1943 candidates selected for Sub Inspector (Civil Police). (v) List 5 – 162 candidates selected for Platoon Commander PAC. (vi) List 6 – List of 76 officers selected for Fireman Second Officer. (vii) List 7 – List of non-selected candidates. (viii) List 8 – List of candidates declared unsuccessful in the written examination.”

8. Thereafter, an application seeking amendment of Writ Petition No.23733 of 2018 was filed and the following prayer was sought to be added: - “(iii-a) issue a writ, order or direction in the nature of certiorari and quash the impugned result dated 28.02.2019 (Annexure-8) regarding List-B showing name of Petitioners Nos.1, 2, 4, 12, 21, 26, 41, 61, 62, 63, 70, 80, 81, 82, 84, 90, 94, 97, 98 and 99 as well as other candidates failed in written exam.” 41 A B C D E F G H 42 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. The aforesaid amendment application was allowed by a Single Judge of the High Court vide Order dated 06.03.2019.

9. Some of the unsuccessful candidates had also filed Writ Petition SS No.6540 of 2019 (Manish Kumar Yadav and 49 Ors. v. State of U.P. Thru Addl. Chief Secy. Home Lucknow and Ors.) before the Lucknow Bench of the High Court. In the reply dated 23.03.2019, filed by the Principal Secretary, Department of Home, Government of Uttar Pradesh to said Writ Petition, it was submitted:- “It is further submitted that the written examination has been organized by the U.P. Public Service Commission by different papers and same has been evaluated by the different examiners and as such scaling system has been adopted by the U.P. Public Service Commission. Hence the aforesaid judgment cited by the petitioners is not applicable. It is also relevant to mention here that selection in question has been conducted online but in the aforesaid online examination there is no difference in the subject, however, considering the huge number of candidates online examination was held on different dates and different shifts, as such different set of papers with varying levels of difficulty have been used. It is further submitted that for normalization of the Marks of the candidates who appeared in different papers, Standardized Equi-percentile Method has been applied. Where the Examination were held in different dates, different shifts and different set of papers. The Normalization process has been adopted in different National Examination, therefore, the Normalization process adopted by board is legal and justified.”

10. In said Writ Petition No.6540 of 2019 and other connected matters, a Single Judge of the High Court passed an interim order on 30.03.2019, the operative portion of which was:- “As an interim measure, it is provided that till the next date of listing, no appointment letter shall be issued to the selected candidates pursuant to the select list / result dated 28.02.2019, which is contained as Annexure No.1 to the writ petition, however, the process of selection which is being undertaken by the State Authorities may go on.” STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.]

11. The aforestated Order dated 30.03.2019 was challenged by some of the selected candidates by preferring Special Appeal (Defective) No.210 of 2019 (Satyendra Kumar Singh and Ors. vs. State of U.P. Thru. Add. Chief Secy, Deptt. of Home and Ors). The Division Bench of the High Court considered rival submissions advanced by the concerned candidates and the State Government and by its order dated 27.05.2019 modified the interim directions issued by the Single Judge. The operative portion of the order passed by the Division Bench was:- “….After considering the rival submissions, this Court is of the opinion that the process of recruitment, which was initiated in the year 2016 for which the final select list has been issued on 28.02.2019 could not be hampered on account of any order passed by the Court. It is not in dispute that the introduction of the Rule of Equi-percentile Methodology was notified by means of the notice dated 28.06.2017 i.e. prior to the date when the examination was held and none of the writ petitioners had assailed the said Methodology. After having appeared in the examination and upon declaration of the final select list, it would not be appropriate for such candidates to hold the entire recruitment process to ransom. However, without entering into the merits of making any observations, this Court in the facts and circumstances deem appropriate that subject to the directions given in this special appeal, the respondent No.2 i.e. U.P. Police Recruitment and Promotion Board may issue the appointment letters, which shall be subject to the final outcome of the writ petition pending before the learned Single Judge. The appellants and other selected candidates shall give their undertaking before the appropriate authority concerned that they shall not claim any lien or right over the appointment and their appointments shall be purely subject to the outcome of the writ petitions pending before the learned Single Judge. The appellants shall ensure that they file their counter affidavit before the next date of listing before the learned Single Judge, who shall upon exchange of pleadings shall consider the issue involved shall decide the writ petitions pending before it.”

12. Consequently, selected candidates were sent for training. 43 A B C D E F G H 44 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R.

13. The Order dated 27.05.2019 passed by the Division Bench was challenged by some of the candidates by preferring Special Leave Petition (Civil) No.13551 of 2019 (Manish Kumar Yadav and Ors. vs. State of Uttar Pradesh and Ors.) which came up before the Vacation Bench of this Court on 12.06.2019 when following order passed by this Court: - “We do not find any cogent grounds to interfere with the order of the Division Bench impugned. The selected candidates have given an undertaking that they shall not claim any lien or right over the appointments which shall be subject to the result of the writ petition. The special leave petition is not entertained. We, however, request the Chief Justice of the High Court to constitute a special Division Bench to expeditiously hear the writ petition on day-to-day basis without granting necessary adjournments and to dispose of the writ petition as expeditiously as possible preferably within thirty days from the date of constitution of the Bench. The special leave petition and pending applications are accordingly disposed of.”

14. Thereafter, a Special Division Bench was constituted at Allahabad. Similarly, a Special Bench was also constituted at Lucknow Bench of High Court. The Special Division Bench constituted at Allahabad allowed Writ Petition No.23733 of 2018 and other connected matters by its judgment and order dated 11.09.2019 which is presently under challenge.

14.1 The rival submissions advanced by the parties, were summarized by the Special Division Bench at Allahabad as under:- “61. Having noted the rival contentions, at length, the submissions of the learned counsel for the petitioners, in brief can be summarized as follows:- (i) the Selection Board has been conferred limited power under the Recruitment Rules only to determine the procedure of written examination; (ii) the Selection Board is not vested with the power and authority to determine the procedure of selection which has been prescribed by the rule making authority; STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] (iii) the eligibility condition of obtaining 50% marks by a candidate is a condition precedent mandated under the Rules, which is not subject to any alteration or substitution by normalized score; (iv) normalization is a method of evaluation falling within the ambit of written examination and not an eligibility condition, normalized score at the best can be applied for preparing the select list in order of merit; (v) the Selection Board by eliminating the qualified candidates having scored 50% marks in each subject by applying the normalized score exceeded its power and authority vested by the Recruitment Rules; 62. In rebuttal the submissions on behalf of the respondents, can be briefly summarized as follows:- (i) the Selection Board is vested with the power and authority to equalize the marks obtained by a candidate in the backdrop of written examinations held on multiple dates/multiple shifts with different papers; (ii) the Selection Board has inherent power to adopt a fair and just procedure by equalizing the marks to place all the candidates on a level playing ground; (iii) the Selection Board has power to equalize the eligibility marks (50%) prescribed under the Rules in an examination held in multiple shifts with different standard of papers; (iv) candidates appearing in difficult papers would be in disadvantageous position as against candidates appearing in relatively easier question papers. The word ‘’marks’ used in Sub- clause (b) and (e) of Rule 15 would mean and include normalized marks. (v) petitioners after participating in the selection process cannot turn around to challenge the same. 63. Rival submissions fall for consideration.” 14.2 The questions that arose for consideration were formulated as under: - “(i) whether the Selection Board was within its power and authority in applying the normalized percentile score to determine the eligibility of the candidates or in the alternative whether the Selection Board transgressed its authority to alter/substitute the 45 A B C D E F G H 46 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. eligibility criteria (50% marks) mandated in Sub-clause (b) of Rule 15 by normalized score to non-suit, all such candidates from the recruitment process who obtained 50% marks and above; (ii) the scope of judicial review of the Standardized Equitable Percentile Method adopted by the Selection Board.”

14.3. In paragraph 66 of its judgment, the Special Division Bench quoted Rule 15 of the Recruitment Rules4: “”Procedure for Direct Recruitment to the post of Sub- Inspector:-

15. (a) Application form and call letter:- A candidate shall fill only one application Form. The Board will accept only online applications. The application of candidates, who fill more than one form, may be rejected by the Board. The Head of the Department, in consultation with the Board, shall fix an application fee for any recruitment. Detailed procedure of filling the Application Form and issuance of call letter shall be determined by the Board and will be displayed on its own website. The Government may change the number of vacancies for any recruitment at any time before the first examination and may also cancel any recruitment at any time or stage of recruitment without assigning any reason therefor. (b) Written examination Candidates whose applications are found correct, shall be required to appear for written test of 400 marks. In this written examination, the Board will keep one objective type question paper of the following subjects:- 4 The U.P. Sub Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2015 framed in exercise of powers under the Police Act, 1861. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] Candidates failing to obtain 50% marks in each of the above subjects shall not be eligible for recruitment. The detailed syllabus for the examination will be decided by Board and will be displayed on its own website. The Board will decide at its own level to conduct written examination on one date in a single shift or in more than one shift or on more than one shift or on more than one date in different shifts with different question paper. Detailed procedure for written examination shall be determined by the Board and will be displayed on its own website. (c) Scrutiny of documents and physical standard test:- Candidates found successful in written examination under clause (b) shall be required to appear in Scrutiny of Documents and physical Standard Test. Keeping in view the total number of vacancies, the Board shall decide at its own level, the number of candidates on the basis of merit to be called for this test. Physical Standards for candidates are as follows:-

1. Minimum Physical Standards for male candidates are as follows:- (a) Height:- xxxxxx (b) Chest:- xxxxxx

2. Minimum Physical Standards for female candidates are as follows:- (a) Height:- xxxxxx (b) Weight:- xxxxxx For conducting this examination, a Committee will be constituted by the Board in which a Deputy Collector nominated by the District Magistrate will be the Chairman and the Deputy Superintendent of Police nominated by the District Superintendent of Police will be the member, the other members of the committee shall be 47 A B C D E F G H 48 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. nominated by the District Magistrate or the Superintendent of Police if requested by the Selection Board. Detailed procedure for this examination shall be determined by the Board and will be displayed on its own website. (d) Physical Efficiency test:- Candidates found successful in Scrutiny of Documents and Physical Standard Test as per clause (c) will be required to appear in Physical Efficiency Test, which will be of qualifying nature…… Detailed procedure for Physical Efficiency Test shall be determined by Board and will be displayed on its own website. For conducting this exam a committee will be constituted by Board…….. (e) Selection and final merit list:- From amongst the candidates found successful in Physical Efficiency Test under clause (d), on the basis of marks obtained by each candidate in written examination under clause (b). Board shall prepare, as per the vacancies, a select list of each category of candidates, as per order of merit keeping in view reservation policy and send it with recommendation to the Head of the Department subject to Medical test/character verification. No waiting list shall be prepared by the Board. List of all candidates with marks obtained by each candidate shall be uploaded on its website by the Board. The Head of the Department shall after his approval forward the list sent by the Board to the Appointing Authority for further action. Note:- xxxxxxxxx (f) Medical Test:- The candidates whose names are in the select list as per clause (e), will be required to appear for Medical Examination by the Appointing Authority. For conducting the medical examination, the Chief Medical Officer of the concerned district shall constitute a medical Board, which will have 03 doctors, who will conduct Medical Examination as per “Police Recruitment Medical Examination Forms” as prescribed and codified by the Head of Department in consultation with the Director General of Medical STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] Health. Any candidate not satisfied by his Medical Examination, may file an appeal on the day of examination itself. xxxxxxxx The candidates found unsuccessful in Medical Examination shall be declared unfit by the Appointing Authority and such vacancies shall be carried forward for next selection”. 49 A

14.4 The Special Division Bench was not satisfied with the translation of the relevant parts of the notification dated 28.06.2017 and as such, it translated paragraphs 4 and 9 of the notification as under:- (Emphasis supplied) B “4. The direct recruitment to the posts of Sub Inspector Civil Police, Platoon Commander, PAC and Fire Officer II is being conducted on the basis of merit in terms of the marks obtained by the candidates successful in the online written examination. In view of the number of candidates, need has arisen for conducting online written examination on more than one date in different shifts with different sets of papers. Question papers of the different shifts shall be different, and keeping in view the possibility of them being not similar, the normalization of the marks obtained by the candidates in different question papers shall be done by the “MAH- MBA/MMS CET 2015” Standardized Equi-percentile Method. xxx xxx xxx

9. The candidates who fail to obtain 50 percent marks in each subject shall not be eligible for the recruitment.”

14.5 The submissions advanced by the learned counsel for the writ petitioners were summed up as under:- “14. To summarise the arguments of the learned counsels for both sides, Sri R.K. Ojha, learned Senior Advocate appearing for the petitioners submits that the process of normalization adopted by the respondents for preparation of the eligibility list is not contemplated in the Recruitment Rules. Even the Selection Board while issuing notification dated 17.06.2016 in Clause 4.1 and 4.2 thereunder provided that selection would be made on the criteria of 50% marks being the qualifying marks in the written examination and select list calling the candidates for participation in the process of scrutiny of documents and Physical Standard test would be drawn on the said criteria. C D E F G H 50 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R.

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

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

44. The first submission is that the normalization is an universally approved standard method applicable in case of variable difficulty level of question papers and, therefore, application thereof was well within power of evaluation of the Selection Board. Placing the affidavit dated 12.04.2019 filed on behalf of the respondent Nos.2 & 3, it is contended that normalized marks “Y” were derived after applying the Equi Percentile formula on fraction of 100 and as such denote percentage and not percentile. The said formula was worked out by the agency which had conducted the examination and prepared result for the Selection Board. The experts/statistician of the company had applied Equi-percentile Method in coordination with and under the instructions of the STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] Selection Board. It is wrong to assert that normalized marks achieved by the Equi-Percentile Method and percentile are one and the same thing. Ultimate value of “Y” being value out of ‘100’ is percentage marks of the candidates. The equation of Equi Percentile formula re-written on fraction of 100 at page no.’10’ (Annexure no.2 of the said affidavit) is noted hereunder:-

14.7 The relevant discussion and the conclusions arrived at by the Special Division Bench were:- “78. On a plain reading of Sub-clause (b) of Rule 15, the rule making authority explicitly and clearly mandated that a candidate fulfilling the educational qualification would have to take the written examination, in the event of the candidate ‘failing to obtain 50% marks’ in each subject would not be ‘eligible’ to participate in the subsequent stages of recruitment. The latter part of Sub-clause (b) confers power upon the Selection Board to determine: (i) detail syllabus for the examination; (ii) to conduct written examination on one date in single shift or in more than one shift or on more than one date in different shifts with different question papers; (iii) to determine the procedure for written examination. Sub-clause (c) of Rule 15 provides that candidates found “successful in written examination under sub-clause (b)” shall be required to appear in scrutiny of documents and physical efficiency test.

79. On conjoint reading of Sub-clause (b), in particular, the first part with sub-clause (c), it is evidently clear that the Selection Board has not been conferred power to dilute, alter or prescribe the eligibility of a candidate by substituting the mandated ’50% marks’ by the ‘normalized score’ to qualify the candidates for subsequent stages of selection. The rule making authority upon prescribing the eligibility criteria, conferred limited power upon the Selection Board to determine the detailed procedure of written examination. The procedure of selection was prescribed by the rule making authority under Rule 15, however, the Selection Board 51 A B C D E F G H 52 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. was conferred limited power to determine the procedure of written examination. In the facts of the instant case, the Selection Board exceeded its authority and power by applying the normalized score and not the raw marks to determine the eligibility of the candidates while preparing the select list. The petitioners, herein, qualified the written examination by scoring ’50% marks’ in each subject, thereafter, were invited by the Selection Board to participate in the subsequent stages of recruitment i.e. document verification and physical efficiency test, which is of a qualifying nature, no marks are allotted. The Selection Board, however, eliminated the petitioners by applying the normalized score in order to determine the eligibility qualifying marks in contradiction to that mandated under the Rule in gross violation of Sub-clause (b) of Rule 15. The conduct of the Selection Board tantamounts to re-writing/ amending the mandatory rule, thereby, vitiating the select list.” … … …

88. On reading Sub-clause (b) and (e) of Rule 15 the word “marks” used therein have different connotation. The phrase ‘failing to obtain 50% marks’ employed by the rule making authority in Sub- clause (b) prescribes the eligibility criterion which is mandatory qualification. In other words, a candidate failing to obtain the prescribed eligibility marks gets excluded from the recruitment process automatically. Whereas, the phrase “marks obtained by each candidates” employed in Subclause (e) of Rule 15, would not mean and include the marks obtained by the candidate for determining his/her eligibility, but would take within its fold the ‘normalized score’ for preparing the select list in order of merit after equalising the marks obtained by the candidates in Sub-clause (b). Sub-clause (b) refers to marks prescribed by the rule for eligibility purpose, whereas, Sub-clause (e) refers to marks/score obtained upon evaluation upon normalization of the marks referred to in Sub-clause (b) for the purpose of making the select list in the order of merit. Such an approach in drawing the select list in an examination held in multiple shifts would be just and fair. The Selection Board is within its powers in adopting a method of evaluation of written examination papers in the backdrop of multiple shifts/different paper exams to arrive at a process to prepare the select list in order of merit. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.]

103. We are also fortified in our conclusion while tracing the evolution of the Rules pertaining to the recruitment of Sub- Inspector. The Recruitment Rules came to be amended on 3 December 2015. The selections have been made pursuant to the amended Rules. Sub clause (b) of Rule 15 provides that “candidates failing to obtain 50% marks in each of the subject shall not be eligible for recruitment”. The same phrase was employed in Sub-clause (e) of Rule 15 that came to be amended. In other words, eligibility criteria was not altered or changed by rule making authority. The only change brought about by the amendment was that the procedure for written examination was entrusted upon the Selection Board exclusively by omitting Appendix-3 which prescribed the procedure of written examination. We are informed that the superseded Rule (Prior to enactment of Recruitment rules) governing the appointment and selection of Sub-Inspector, viz. “the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service rules, 2008”, Rule 15(f) provided that the candidate ‘who fails to obtain minimum 50% marks’ in each subject shall not be eligible for recruitment. It is, thus, evident that the rule making authority was fully conscious that the candidates are required to score minimum marks (50%), failing which, they shall not be eligible for recruitment. The eligibility criteria was retained while promulgating Recruitment Rules. The Selection Board was not conferred the power and jurisdiction by the rule making authority to alter or amend the eligibility criteria. The Selection Board by the amended rules was vested with exclusive, but limited power to determine the procedure of the written examination, which includes evaluation of papers by adopting method of scaling to equalize the different levels of papers in examination held in multiple shifts and, accordingly, draw the select list. We accordingly find merit in the contention of the petitioners that Selection Board exceeded its authority by disqualifying the petitioners. … … …

107. Normalisation of marks, therefore, means increasing and/or decreasing the marks obtained by students in different timing sessions (shifts) to a certain number. In statistics, the term normalization refers to the scaling down of the data set such that 53 A B C D E F G H 54 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. the normalized data falls in the range between 0 and 1. Such normalization techniques help in comparing corresponding normalized values from two or more different data sets in a way that it eliminates the effects of the variation in the scale of the data sets i.e. a data set with large values can be easily compared with a data set of smaller values. The normalized score/percentile is obtained by applying a formula.

108. Percentiles, however, should not be confused with percentage. The latter is used to express fractions of a whole, while percentiles are the values below which a certain percentage of the data in a data set is found. In practical terms, there is a significant difference between the two. The percentage score reflects how well the student did in the exam itself, the percentile score reflects how well he did in comparison to other students. Percentile rank would, therefore, mean percentage of scores that fall at or below a given score. Usually written to the nearest whole percent and are divided into 100 equally sized groups. The lowest score is at the first percentile and the highest score is at the 99th percentile.

109. It is relevant to place on record that none of the aggrieved candidates have made any allegation of mala fides or lack of bona fides, as against the Selection Board or its members or for that matter in the manner in which subsequent stages of selection were held by the Committee or with regard to the computation of normalized score arrived at by applying the Standardized Equi- Percentile method. In the absence of challenge to the normalization method and the scores obtained by the Selection Board in scaling the marks of the candidates scored in written examination, we take it that the normalisation formula and the normalized percentile score worked out by the Selection Board is just and fair. … … …

122. On specific query, learned Additional Advocate General submits that all the petitioners herein who obtained 50% minimum marks (qualifying marks) were allowed to participate in the subsequent stages of selection i.e. physical standard test, document verification and physical efficiency test. It is, therefore, urged that the Selection Board would not be required to undertake any fresh exercise of selection/recruitment in preparation of the select list in order to merit. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.]

123. Having due regard to the facts and circumstances of the case and the provisions mandated by the Recruitment Rules, the writ petition is allowed by passing the following orders: i) the select list dated 28 February, 2019 is set aside and quashed; 55 A ii) the candidates having failed to obtain 50% marks (raw marks) in each subject are declared ineligible for recruitment/selection; B iii) the Selection Board shall prepare the select list in order of merit on normalized score, derived by Standardized EquiPercentile Method; iv) Selection Board to comply the order within six weeks from the date of filing of certified copy of this order and the selected candidates shall be sent for training.”

15. The points which were noted or weighed with the Special Division Bench of the High Court can be summed up as under:- a. b. c. d. e. There were no allegations of mala fides or lack of bona fides as against the Selection Board or its Members or with respect to the manner in which the subsequent stages of selection were held or with regard to the computation of normalization score or the normalization method and formula adopted by the Selection Board. The expression “marks” as used in Rule 15 (b) of the Recruitment Rules must be construed as “raw marks”. Rule 15 (b) dealt with eligibility condition and a candidate failing to obtain 50% “raw marks” in each of the subjects would not be eligible for recruitment. Only those candidates who were successful in written examination under clause (b) of Rule 15 that is to say who had obtained more than 50% “raw marks” were eligible to appear in the further stages of scrutiny of documents and physical efficiency test. The expression “marks obtained by each candidate in written examination under clause (b)” as appearing in Sub-rule (e) of Rule 15 must be understood and construed as “normalized score”. In other words, the process of normalization could be applied only for preparing the select list after all stages C D E F G H 56 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. of examination contemplated under Sub-rules (b), (c) and (d) were over. f. The Selection Board was not competent to adopt the process of normalization at Rule 15(b) stage and such conduct on part of the Selection Board amounted to re-writing or amending the mandatory rule. In the light of these conclusions, the directions passed by the Special Division Bench required the concerned authorities to rule out the candidature of those who had failed to obtain 50% “raw marks” in each subject and then to prepare the select list in order of merit using “normalized score”.

16. Relying on the aforestated decision of the Special Division Bench at Allahabad, the Special Division Bench at Lucknow disposed of all the matters pending before it namely SS No.6540 of 2019 and connected matters (Manish Kumar Yadav and others vs. State of Uttar Pradesh and others) by its order dated 18.10.2019. Said order of the Special Division Bench at Lucknow was challenged in Special Leave Petition (C) Diary No.39931 of 2019 (Ajay Singh v. Manish Kumar Yadav and 49 others). The Special Leave Petition was rejected summarily by this Court by its order dated 18.11.2019 as under:- “Application for permission to file Special Leave Petition is allowed. Heard learned counsel for the parties. The Special Leave Petition is dismissed. Pending applications stand disposed of.”

17. State of Uttar Pradesh and some of the candidates being aggrieved by the judgment and order dated 11.09.2019 passed by the Special Division Bench at Allahabad have challenged the decision by filing Special Leave Petitions from which the instant appeals arise. In its order dated 28.02.2020, this Court directed the State and the Board as under: “We direct the State and the Board to file appropriate affidavits indicating: (a) How many candidates had secured minimum 50% of marks before the normalization process was applied and who were also STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] 57 found to be eligible in the subsequent two stages namely scrutiny of documents and physical standard test. A (b) How many candidates were found to have secured minimum 50% marks after normalization process was applied and who were also found to be eligible in the subsequent two stages namely scrutiny of documents and physical standard test. In other words, the number of candidates who were found eligible without resorting to normalization and after taking resort to normalization, must be available. (c) Out of these two lists, which are the common names who irrespective of, whether normalization is applied or not would still be qualified. (d) The affidavit shall also indicate the current vacancy position category-wise and how many seats were actually advertised to be available in the current selection process. Let the exercise be done within next four days and appropriate affidavits be filed on or before 5.3.2020. Pending further consideration, there shall be stay of proceedings in any contempt filed in relation to the present matter.” B C D

18. Accordingly, an affidavit was filed on behalf of the State and E the Board placing on record the factual information as under: “3. That for recruitment of Sub Inspector Civil Police and equivalent post of direct recruitment 2016, 2400 posts of Sub Inspector Civil Police, 210 posts of PAC Platoon Commander, 97 posts of Fire Service Second Officer regarding Male candidates and 600 posts of Sub Inspector Civil Police regarding female have been advertised separately for male and female vide notification dated 17-06-2016 respectively. Against the said advertisement total 630926 online applications (Male 542124 & Female 88802) have been received. Out of which total 364539 candidates (Male 317828 & Female 46711) have participated in the written examination.

4. That 9158 male candidates had secured 50% of marks in each section/ subject before the normalization process was applied. Out of these 9158 candidates, 7930 candidates were present/ appeared in DV/ PST (Document Verification and Physical F G H 58 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. Standard Test-Height/ Chest) and 1181 remain absent. Out of these 7930 candidates, 7603 were qualified in DV/PST. 5723 candidates out of 7603 were qualified in Physical Efficiency Test (Running). In addition to above, it has to be clarified that 47 male candidates were qualified before normalization as per instructions of Hon’ble High Court, Allahabad, they were awarded extra marks for two wrong questions but they could not be called for DV/ PST because they could not qualify in normalized marks as by that time the selection result was being prepared on the basis of only normalized marks.

5. That 501 female candidates had secured minimum 50% of marks in each section/ subject before the normalization process was applied. Out of these 501 female candidates, 448 candidates were present/ appeared in DV/ PST (Document Verification and Physical Standard Test-Height/ Weight) and 53 candidates remained absent. Out of 448 candidates, 441 were qualified in DV/ PST and 348 candidates out of 441 candidates were qualified in Physical Efficiency Test (Running).

6. That 5229 male candidates had secured minimum 50% of marks in each section/ subject after the normalization process was applied. Out of these 5229 candidates 4452 candidates were present/ appeared in DV/ PST (Document Verification and Physical Standard Test-Height/ Chest) and 777 candidates remained absent. Out of 4452 candidates, 4261 were qualified in STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] 59 DV/ PST and 3148 candidates were qualified in Physical Efficiency Test (Running) out of these 4261. A

7. That 484 female candidates had secured minimum 50% of marks in each section/ subject after the normalization process was applied. Out of these 484 candidates 400 candidates were present/ appeared in DV/ PST and 84 candidates remained absent. Out of 400 candidates, 395 were qualified in DV/ PST. 309 candidates were qualified in Physical Efficiency Test (Running) Out of 395 candidates.

8. That in the male category 3899 names are common. Out of which finally 2498 candidates were qualified in PET (Running)

9. That in the female category 352 names are common. Out of which finally 246 candidates were qualified in PET (Running)

10. That the position of unfilled vacancies is as follows: After completion of this section process 821 posts are unfilled/ vacant due to non-availability of suitable candidates. (a) Category wise unfilled posts in Males-526 B C D E F G H 60 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. (b) Category wise unfilled posts in Females-295

11. That the said online written examination, scrutiny of document and Physical Efficiency Test has been got conducted by highly certified undertaking NSEIT’s Ltd. a Government of India undertaking and the information in respect of present affidavit has been supplied by the said executing agency NSEIT’s Ltd. which is entirely transparent and non-discriminatory.”

19. As some of the respondents were not served, the subsequent order dated 28.07.2020 passed by this Court directed the State Government to publish appropriate advertisement in two newspapers having wide circulation in the State i.e. one in vernacular language and other in English, indicating that the judgment and order dated 11.09.2019 passed by the High Court was under challenge in this Court and that any person interested in supporting said judgment could appear either in- person or through his counsel. It was also observed that in any case, those respondents who were served in the matters and were being represented by number of learned counsel, would be taken to be representing the interest of all the concerned respondents. Accordingly, the advertisements were published by the State and compliance affidavit was filed in the Registry of this Court. The matters were thereafter directed to be placed for final disposal.

20. In these appeals, Mr. Vinod Diwakar, learned Additional Advocate General advanced submissions on behalf of the State. Mr. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] P.S. Patwalia, Dr. A.M. Singhvi, Mr. Vikas Singh, Mr. Vinay Navare, learned Senior Advocates and Mr. Amit Pawan and Mr. Shoeb Alam, learned Advocates in that order, advanced submissions on behalf of the concerned candidates supporting the State. The arguments on the part of the respondents were advanced by Mr. Rakesh Dwivedi, Mr. Kapil Sibal, Mr. V. Giri, Ms. V. Mohana, Ms. Vibha Datta Makhija, Mr. Pallav Shishodia, learned Senior Advocates and Ms. Bansuri Swaraj and Mr. Anand Verma, learned Advocates, in that order. Both sides placed reliance on some of the instances highlighting the effects of normalization.

21. The submissions advanced in support of the appeals were: (a) (b) (c) (d) (e) Expression “marks” could not be given different meaning or connotation at two different stages of the process contemplated by Rule 15 of Recruitment Rules. Rules 15(b) and 15(e), being part of the same Rule and part of the same process, must carry the same meaning for expression “marks” at both the places. By very nature of having the written examination in 29 sessions, some of the papers were tougher while some were much simpler or easier and therefore there was a necessity to put all the candidates on an even keel. Thus, the process of normalization was rightly adopted at the threshold, that is to say, at the level contemplated by Rule 15(b) of Recruitment Rules. Considering the large number of candidates, even before the process had begun, the State had made it quite clear that the process of normalization would be adopted. Thus, the action on the part of the State was completely fair and transparent. In any case, as found by the High Court, there was not even an allegation of mala fides or absence of bona fides in the action on part of the State. If the process of normalization was not adopted at the initial stage, some of the rightful claimants and candidates would have got eliminated at the initial stage though upon normalization they had easily qualified. (f) The equality doctrine under Article 14 of the Constitution would postulate that unequals ought not to be treated equally. 61 A B C D E F G H 62 A B C D E F G SUPREME COURT REPORTS [2022] 1 S.C.R. If the degree of difficulty in the question papers otherwise demanded normalization being adopted, postponing the process of normalization to the stage of Rule 15(e) of Recruitment Rules would only result in an unfair treatment as against those who by sheer coincidence had to answer tougher question papers. (g) The decision of this Court in Sanjay Singh & Anr. v. U.P. Public Service Commission, Allahabad & Anr.5 had found that moderation would be permissible and it was only in the peculiar fact situation of case that scaling down or normalization was not found to be permissible. (h) Wherever large number of candidates appear at the examination and wherever multiple number of question papers are utilized, a process such as, equalisation, normalization or standardisation or scaling would always be applied so that all the candidates are judged or tested on parameters equal to all. (i) (j) It was not the submission of the original writ petitioners that the process of normalization could never be adopted. All that they contended was that the stage of normalization ought to be postponed to the state of Rule 15(e). The normal approach in service jurisprudence, where the extent of judicial review is limited, is to give maximum leeway to the concerned authorities so long as their actions are fair and transparent, uniform in application and without any mala fides.

22. On the other hand, the submissions advanced on behalf of the writ petitioners who had succeeded in the High Court, were: (a) A candidate should always be made well aware of the minimum percentage that he would be required to obtain in order to be eligible for further stages of the selection. The cut off at 50%, therefore, had to be reckoned as against the written examination that a candidate was required to undertake. The parameters ought to be clear and well defined rather than being susceptible to any change or H 5 (2007) 3 SCC 720. STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] 63 modification depending upon the level of difficulty that the other candidates were required to face. A (b) At the initial stage, that is to say, at Rule 15(b) level what was required was minimum 50% out of maximum marks allocable for such written examination. In other words, the candidate was to be competing against himself and his performance was not to be judged in comparison to that of others in order to be eligible. (c) What Rule 15(b) required was fifty “percent” of marks and not that the candidate ought to be in fifty “percentile”. (d) At the Rule 15(b) stage, a specific and known target would be required to be met by the candidate in order to enable him to reach the next level and as such marks required at that stage ought to be “raw marks” and not any “normalized score”. (e) (f) The “normalized score” would be a measure to compare inter se performance or level of the candidates and therefore, ought to be relied upon only for deciding the inter se merit position amongst candidates and not to disqualify those who had secured more than 50% “raw marks”. Since Rule 15(b) required a candidate “to obtain 50% marks in each of the subjects”, the requirement was rightly construed by the High Court to be 50% “raw marks”. (g) Obtaining of 50% “raw marks” being a condition of eligibility stipulated by the rule making authority, the Board as a sub- delegate, was not competent and justified in modifying the requirement. (h) In the process of normalization, what factors would be considered were never known to the candidates at the beginning of the selection process. All that they were made aware was that they had to obtain 50% marks in the written examination. What they had actually obtained, could not have been altered by any artificial process such as normalization resulting in disqualification of the candidates. (i) A candidate was required to appear for the written test of 400 marks comprising of four subjects, all of which had to B C D E F G H 64 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. be answered in one session as part of the same question paper. It was quite possible that questions regarding one of those said four subjects were tougher while the other subject/subjects were much simpler. It was the sum total of the entire paper that a candidate was required to face and answer in one session. A candidate could as well have devoted more time to solve tougher questions. Thus, by very nature of examination, it was difficult to adopt the process of normalization at the initial stage and thereby hold some of the candidates to be ineligible. The instant matters were rightly found by the High Court to be covered by the decision of this Court in Sanjay Singh’s5 case. The decision of the High Court, in any case, stood affirmed by dismissal of Special Leave Petition (C) Diary No.39931 of 2019. (j) (k)

23. At the outset, we must consider the effect of dismissal of Special Leave Petition (C) Diary No.39931 of 2019. It was a summary dismissal at the admission stage and the order does not disclose any reasons why the challenge was negated. The challenge was also not at the instance of the State. In P. Singaravelan and others vs. District Collector, Tiruppur and DT and others6, it was observed by this Court:- “6. It is evident that all the above orders were non-speaking orders, inasmuch as they were confined to a mere refusal to grant special leave to appeal to the petitioners therein. At this juncture, it is useful to recall that it is well-settled that the dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same. If such an order of this Court is non-speaking, it does not constitute a declaration of law under Article 141 of the Constitution, or attract the doctrine of merger. The following discussion on this proposition in Kunhayammed v. State of Kerala7, is relevant in this regard: (SCC pp. 383-84, para 44) “(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior 6 (2020)3 SCC 133 7 (2000)6 SCC 359 STATE OF UTTAR PRADESH v. ATUL KUMAR DWIVEDI [UDAY UMESH LALIT, J.] forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject- matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in 65 A B C D E F G H 66 A B C D E F G H SUPREME COURT REPORTS [2022] 1 S.C.R. any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC.” (emphasis supplied) This view has also been adopted in a plethora of decisions of this Court, including the recent decision in Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.8

7. Applying these observations to the present case, it is clear that there has been no pronouncement by this Court constituting the law of the land as to the interpretation of GOMs No. 162. In such a situation, it is open for us to proceed to decide the instant appeals uninfluenced by the prior orders of this Court dismissing SLPs against the grant of relief to drivers placed similarly as the appellants herein.” To similar effect are the observations in C.G. Govindan v. State of Gujarat and others9, U.P. State Road Transport Corporation through its Chairman v. Omaditya Verma and others10 and State of Orissa and another v. Dhirendra Sundar Das and others11. We, therefore, reject the submission.