Gauhati High Court
Case Details
WP(C) 502/2009 P R E S E N T HON’BLE MR JUSTICE K. SREEDHAR RAO HON’BLE MR. JUSTICE M.R. PATHAK JUDGEMENT AND ORDER [ O R A L ] (Sreedhar Rao, J.) The facts and subject matter of both the petitions are similar; hence, b oth the petitions are heard together. In both the petitions, the validity of Miz oram Judicial Service Rules, 2006 (for short, 2006 Rules) and the method of sele ction to the post of Civil Judges conducted in the year 2008 are under challenge . 2. The petitioners contend that the formula given in the Rule for assessmen t of the merit of a candidate at the written test is illegal and arbitrary and v iolates Article 14 of the Indian Constitution. The petitioners submit that by ad opting the formula, the candidates, who have secured less mark in the written ex amination, have been selected whereas the petitioners securing the higher marks than the selected ones have been denied appointment. Hence, the selection of the Civil Judges held in the year 2008, is assailed as illegal. In the course of the proceeding in WP(C) No. 4415 of 2008, the petitione 3. In WP(C) No. 4415 of 2008, the respondent Nos. 1 and 2 are the State Aut horities and the respondent No. 3 is the Chairperson, Mizoram Public Service Com mission, the respondent Nos. 4 to 20 are the selected candidates and respondent No. 21 is the Gauhati High Court. In WP(C) No. 502 of 2009, the respondent Nos. 5 to 16, who are called for the interview on the basis of the marks obtained in the written examination, are the finally selected candidates and respondent No. 4 is the Gauhati High Court. The validity of the 2006 Rules and selection proces s is under challenge in both the petitions. 4. rs Nos. 1 to 4 have withdrawn the petition. 5. Rules 9 and 11 of 2006 Rules prescribes that direct recruitment of the C ivil Judges would be on the basis of aggregate marks obtained in a competitive e xamination by the Commission as indicated in Schedule B of the Rules. Rules 9 an d 11 and also the relevant portion of the Schedule B are extracted hereunder: (cid:28)9. Method of Recruitment, Qualification and Age Limit: In respect of each categ ory of the Cadre specified in column (2) of the Table below, the method of recru itment and minimum qualification, age limit etc., are as shown in the correspond ing entries in columns (3) and (4) thereof. Provided that the High Court shall have the power to relex the qualifying servic e of Judicial Officer for the purpose of promotion in case the same is considere d necessary in the interest of service. Sl. No. Cadre 4 1 1. (i) Not exceeding 25% of the posts in the cadre may be f illed by direct recruitment on the basis of the aggregate marks/grade secured in a competitive examination conducted by the High Court as specified in Schedule- By direct recrui B of these rules. (ii) & & & & & & & & &. (iii) & & & & & & & & & tment 1. Must be holder of degree in Law of a recognized University. 2. Must be practicing as and Advocate in courts of Civil and Criminal Jurisdiction on the l ast date fixed for receipt of applications and must have so practiced for a peri od not less than seven years as on such date. 3. Must have attained the age of 35 (thirty five) years and must not have attained the age of 48 (forty eight) ye ars in the case of candidates belonging to Scheduled Tribes and forty five years in the case of others, as on the last date fixed for receipt of applications. 4. Must possess knowledge of Mizo Language at least Middle School standard. 1. & & & & & & & & & &.. 1. & & & & & & & & & &.. 2. Civil Judge (Sr. Divn.) By promotion from the cadre of Civil Judges of t he service on the basis of merit-cum-seniority by the High Court following the c riteria in Schedule-E. By Promotion: 1. Must have been in the Cadre of civil Ju dge for a period not less than 7 years regular service. 3. By direct recruitment on the basis of aggregate marks ob Method of Recruitment 3 Qualification, age limit etc. 2 District Judge Civil Judge tained in a competitive examination conducted by the Commission as indicated in Schedule-B of these rules. By direct recruitment: 1. Must be holder of degr ee in Law of a recognized University. 2. Must not have attained the age of 35 (t hirty five) years. 3. Must not have completed 40 years of age in the case of can didates belonging to Scheduled Castes or Scheduled Tribes and 35 years of age in the case of others as on the last date fixed for receipt of applications. 4. M ust process knowledge of Mizo language of at least Middle standard. 11. Recruitment: (1) To fill a vacancy required to be filled by promotion, the r ecruiting authority shall take all necessary steps well in advance so as to fina lize the list of person considered eligible for promotion at least 10-15 days be fore the occurrence of the vacancy. (2) (i) Whenever two or more vacancies required to be filled by direct recruitme nt occurs in a cadre in the service or once in two years, whichever is earlier, the recruiting authority shall, invite by advertisement and in at least two Loca l/National news papers in two consecutive issue, applications in such form as it may determine from intending candidates, who possess the prescribed qualificati ons. The advertisement shall indicate the number of vacancies and shall contain all necessary information relating to the recruitment. It shall also indicate th at an additional list of selected candidates would be prepared as per clause(iv) . (ii) The decision of the recruiting authority as to the eligibility or otherwise of a candidate for admission to the written and viva voce examination shall be final. No candidate to whom Certificate of admission has not been issued by the recruiting authority shall be admitted for the examination. (iii) The recruiting authority shall, on the basis of cumulative grade value sec ured by a candidate, prepare in the order of merit, assessed as provided in Sche dule-B, a list of candidates to be included in the list which shall be equal to the number of vacancies notified. (iv) The recruiting authority shall, in accordance with the provisions of clause (iii), also prepare an additional list of names of candidates not included in t he list of candidates prepared under clause (iii) above, for which the number of candidates to be included, shall, as far as possible, be ten percent of the num ber of vacancies notified for recruitment or one, whichever is higher. (v) The lists so prepared under clauses (iii) and (iv) above shall be published for general information and they shall cease to be operative on the expiry of on e year from the date of such publication. (vi) Candidates whose names are included in the list prepared under clause (iii) above shall be considered for appointment in the order in which their names app ear in the list and subject to rule 10, they may be appointed by the appointing authority in the vacancies notified under clause (i) above. Candidates whose nam es are included in the additional list prepared under clause (iv) may be similar ly appointed after the candidates whose names are included in the list published under clause (iii) above have been appointed. (vii) Inclusion of the name of a candidate in any list prepared under clause (ii i) or (iv) above shall not confer any right of appointment to such candidate. (cid:29) SCHEDULE ’B’ Evaluating performance in Competitive Examination for appointment to the Judicia l Service. The system operates as follows: 1) The question in the question paper may carry numerical marks for each questio n. 2) The examiner may assign numerical marks for each sub-question which may be to taled up and shown against each full question in numbers. 3) The tabulator will then convert the numerical marks into grade in a seven poi nt scale with corresponding grade values as follows:- Grade Percentage of marks O 70% and above 65% to 69% 60% to 64% Grade Value A+ A 6 5 7 55% to 59% 50% to 54% 45% to 49% 40% to 44% Below 40% B+ B C+ C F 4 3 2 1 0
Legal Reasoning
6. Mr. KN Choudhury, Additional Advocate General, Assam, Mr. MK Sharma, Adv ocate General, Mizoram, Mr. S Shyam, Standing Counsel, Gauhati High Court, Mr. A M Buzarbaruah, Additional Advocate General, Arunachal Pradesh, Ms. T Khro, Senio r Govt. Advocate, Nagaland and Mr. M Das, Advocate of the private respondent hav e addressed their arguments. Mr. B Chakraborty, counsel for the petitioners has argued for the petitioners in both the writ petitions. 7. It is the contention on the part of the State authorities that the selec tion process has been conducted strictly in compliance with the prescribed Rules . The Rules have also been framed in consultation with the High Court, therefore , there is no flaw in the method of selection, nor there is any mala fide. The f ormula provided in the Rules for assessing the merit of the candidate at written examination is followed. The formula has been prescribed in accordance with the decision of the Supreme Court, in U.P. PUBLIC SERVICE COMMISSION v. SUBHASH CHA NDRA DIXIT AND OTHERS, reported in (2003) 12 SCC 701, the method of scaling form ula has been approved to be a valid method in assessing the merit, when the pape rs are valued by different examiners in order to obviate the examiner variabilit y, the scaling formula has been held to be a proper method for assessment of mer it at the written examination. The formula given in the Rules broadly correspond s to the scaling method and it has been approved by the Supreme Court in Subhash Chandra Dixit case. Therefore, the petitioners are neither entitled to challeng e the validity of the Rules nor the selection process, based on the Rules. 8. Sri KN Choudhury also relied upon the decision of the Supreme Court in S ANJAY SINGH AND ANOTHER v. U.P. PUBLIC SERVICE COMMISSION, ALLAHABAD AND ANOTHER , reported in (2007) 3 SCC 720, to contend that in order to overcome the examine r variability, the Supreme Court has laid down two methods to obviate the anomal ies, one being the moderation and the other being scaling method. In that view o f the matter, it is strenuously submitted that the selection process is done wel l in accordance with law and that the Rule, in question is intra vires. 9. The facts of the case disclose that the notification was issued for fill ing up of 13 posts and total 72 candidates had appeared in the written test. Out of 17 candidates, who have been called for interview, 12 candidates were select ed, who are respondent Nos. 5 to 16 in WP(C) No. 502 of 2009. 10. The tabular columns of the names of the candidates in WP(C) No. 4415 of 2008, who appeared in the examination and the raw marks obtained by them at the examination and the grades given to them as per the formula envisaged in the Rul e is extracted below: Sl. No. Roll No. CGVA PETITIONER/APPELLANT/APPLICANT Grand Total Law-II Total Law-I Eng. Viva Name %age GK MARKS OBTAINED 22 36 53 Lalrinpuii R. Lalhmingmawia Hmingthanpuii Ralte 24 2.84 68 2.37 52 1 41.5 2 39.75 3 2.98 4 40.75 5 2.07 6 2.49 RESPONDENT/OPPOSITE PARTY H. Lalchhuanawma Vanlalhlimpuii Zairemsangpuii 18 2.95 92 46.25 34.5 185 163 159 166 138 156 48 53 13 52 36 40 44 52 46 55 48 39 48 30 35 85 47 52 33 25 25 24 50 MARKS OBTAINED 1 42.75 2 3.08 3 3.26 4 3.23 5 45.5 6 41.5 7 51.75 8 3.21 9 3.28 10 51.75 11 3.43 12 44.25 13 45.75 14 43 15. 41.375 16 43.25 17. 44.5 4 3.21 6 30.5 8 27 14 39 17 3.15 31 3.18 33 3.50 37 29.5 42 50.5 47 3.77 49 38 54 3.13 65 3.11 72 3.13 83 3.23 84 3.17 90 3.30 47 49 42 49 253 210.5 Birthoilal Sakachep 39.5 C. Lalremruati 210.5 C. Lalzamliana 200 F. Lalengliana 200 Gracy L. Bawitlung 49 231 Joseph Lalremliana 206 40 Julie Lalrinzami 46 K Lalnunhlima 209.5 Laldinpuia Tlau 50 230.5 Lalngaihmawia Zote 44 251 Lalramsanga 230 Lalrochami Ralte 50 227 Ngursangzuali Sailo 52 235 R. Malsawmdawngzuala 36.5 208.5 T. Lalhmachhuana 44.5 210 Thomas Lalrammawia 35.5 Vincent Lalrokima 43.5 208.5 221.5 46 42 32 22 35 43 42 39 35 38 62 43 41 37 44 46 41 51 21 54 54 42 36 43 47 48 50 41 49 35 31 27 26 37 33 55 52 48 37 49 41 64 48 42 52 54 55 60 50 43 49 55 53 180 173 161 54 40 57 180 180 52 192 46 55 51 171 45 43.25 40.25 182 166 207 45 45 207 48 177 183 172 50.5 165.5 46 39 173 178 11. In WP(C) No. 502 of 2009, the petitioner had obtained 177 raw marks in t he written examination and according to the formula; she was given Grade c+. All the petitioners, because of the low grade obtained compared to the respondents, who obtained the higher grade, are not called for interview. 12. In the present case, the valuation of the papers have been done only by one examiner, no multiple examiners have valued the same subject paper. The Supr eme Court, in Sanjay Singh case has copiously analyzed the law in respect of val uation of the written papers, the pros and cons of the moderation method and sca ling method is discussed with reference to examiner variability. It is taken int o consideration that when one subject paper is valued by multiple examiners, the re would be non-congruence in assessment of the merit. Some examiner may be stri ct and some examiner may be liberal. In order to obviate the anomalies, a system of scaling method or a moderation method is adopted by the Public Service Commi ssion. In Subhash Chandra Dixit case, the Supreme Court had approved the scaling method when multiple examiners evaluate the same subject paper. However, in San jay Singh case, the Supreme Court has made a deep analysis of the merits and dem erits of the scaling method in order to overcome the problem of examiner variabi lity. The Supreme Court suggested that moderation method would be more appropria te to overcome the problem of examiner variability. The Supreme Court has also p ractically considered a different situation with illustrations in the judgment t o come to the conclusion that the scaling method has lot of limitations and deme rits and is not effective enough to overcome the problem of examiner variability , thus, suggested that moderation method would be more appropriate. 13. the following observations: The Supreme Court in paragraphs 23 and 33 of Sanjay Singh case has made When a large number of candidates appear for an examination, it is neces (cid:28)23. sary to have uniformity and consistency in valuation of the answer- scripts. Whe re the number of candidates taking the examination are limited and only one exam iner (preferably the paper-setter himself) evaluates the answer-scripts, it is t o be assumed that there will be uniformity in the valuation. But where a large n umber 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 th an one examiner evaluate the answer-scripts relating to a subject, the subjectiv ity of the respective examiner will creep into the marks awarded by him to the a nswer- scripts allotted to him for valuation. Each examiner will apply his own y ardstick to assess the answer-scripts. Inevitably therefore, even when experienc ed examiners receive equal batches of answer scripts, there is difference in ave rage marks and the range of marks awarded, thereby affecting the merit of indivi dual candidates. This apart, there is ’Hawk- Dove’ effect. Some examiners are li beral in valuation and tend to award more marks. Some examiners are strict and t end to give less marks. Some may be moderate and balanced in awarding marks. Eve n 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-scrip t is given to different examiners, there is all likelihood of different marks be ing 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, the re is ’reduced valuation’ by a strict examiner and ’enhanced valuation’ by a lib eral examiner. This is known as ’examiner variability’ or ’Hawk-Dove effect’. Th erefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of ’examiner subjectivity’ or ’examiner variabilit y’ is minimised. The procedure adopted to reduce examiner subjectivity or variab ility 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 s ubject. He is selected from amongst senior academicians/scholars/senior civil se rvants/Judges. Where the case of a large number of candidates, more than one exa miner is appointed and each of them is allotted around 300 answer-scripts for va luation. (ii) To achieve uniformity in valuation, where more than one examiner is involve d, 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 an d the weightage to be given to various aspects of the answers. They also carry o ut 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 assi gning marks are further discussed. After such discussions, a consensus is arrive d at in regard to the norms of valuation to be adopted. On that basis, the exami ners are required to complete the valuation of answer scripts. But this by itsel f, does not bring about uniformity of assessment inter se the examiners. In spit e of the norms agreed, many examiners tend to deviate from the expected or agree d norms, as their caution is overtaken by their propensity for strictness or lib erality or erraticism 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 condu cts 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 ex aminers. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level answer books of each ex aminer are revalued by the Head Examiner who carries out such corrections or alt erations in the award of marks as he, in his judgment, considers best, to achiev e uniformity. (For this purpose, if necessary certain statistics like distributi on of candidates in various marks ranges, the average percentage of marks, the h ighest and lowest award of marks etc. may also be prepared in respect of the val uation 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 qu antum 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 Examine r, his award of marks is accepted as final. As regards the other answer books be low the top level, to achieve maximum measure of uniformity inter se the examine rs, the awards are moderated as per the recommendations made by the Head Examine r. (v) If in the opinion of the Head Examiner there has been erratic or careless ma rking by any examiner, for which it is not feasible to have any standard moderat ion, 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 Examin ers. In such a situation, one more level of Examiners is introduced. For every t en or twenty examiners, there will be a Head Examiner who checks the random samp les as above. The work of the Head Examiners, in turn, is checked by a Chief Exa miner to ensure proper results. The above procedure of ’moderation’ would bring in considerable uniformity and c onsistency. It should be noted that absolute uniformity or consistency in valuat ion is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity. ***** ***** ***** ***** 33. The reason given for introducing scaling is to cure the disparity on acc ount of strictness or liberality of the examiners. But the effect of the scaling formula adopted by the Commission is to average the marks of a batch of candida tes and convert the raw marks of each candidate in the batch into scaled marks w ith reference to the average marks of the batch and the standard deviation. The scaling formula therefore, does not address or rectify the effect of strictness or liberality of the examiner. The scaling formula is more suited and appropriat e to find a common base and inter se merit, where candidates take examinations i n different subjects. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standa rd of valuation of answer scripts by different examiners either on account of st rictness or liberality, it has to be concluded that scaling is based on irreleva nt considerations and ignores relevant considerations. (cid:29) 14. In the context of the law laid down by the Supreme Court, the present fo rmula prescribed in the Rules for assessment of the merit of the candidate at th e written examination, if considered, the Rule appears to be illegal and ultra v ires the Constitution. 15. Grade Value 7 is given to candidates, who secure 70% and above marks, Gr ade Value 6 is given to persons, who secure between 65% and 69% of marks. Grade Value 5 is given to candidates, who secure marks between 60% and 64%, Grade Valu e 4 is given to persons, whose mark is between 55% and 59%, Grade Value 3 is for candidates, whose mark is between 50% and 54%, Grade Value 2 is given to those, whose mark is between 45% and 49% and whose mark is between 40% and 44%, the Gr ade Value is 1. The formula virtually is akin to the scaling method. Although ca ndidates, who secure more raw marks in the written examination by virtue of scal ing down, they will be put on at par with the persons, who secure minimum marks of that Grade. There appears to be no rational in the Rule to keep the persons, getting lesser marks, with the persons getting higher marks in the same Grade at the written examination. The formula, which directs reducing the raw marks and placing the candidates getting higher marks with candidates getting lesser marks at the same Grade, is discriminatory and violative of Article 14 while assessin g the merit of the candidate. In fact, scaling and moderation method are to be adopted when a subject 16. paper is valued by more than one examiner. In the instant case, only one examine r has valued the subject papers, therefore, question of examiner variability doe s not arise. The formula, without taking into consideration the applicability of examiner variability directing the Grading method, which is fallacious and arbi trarily reduces the marks of the candidates and keeps on par with persons, who s cored the lowest marks in that Grade. The Grading formula prescribed in the Rule is akin to the scaling method. It may be that a candidate, who scores the highe st mark in the Grade and his paper might have been valued by a person, who is su pposed to be a strict examiner and a person, who gets the lowest mark in the Gra de, his paper might have been valued by a liberal examiner. There cannot be any presumption that the person secured higher or the highest mark in the Grade, his paper is valued by a liberal examiner, thereby arbitrarily scaling down the mar k of a person in a Grade and make it level with the lowest mark, is arbitrary an d violates Article 14 of the Constitution. More so, in the present case, there i s no problem of examiner variability. Therefore, the application of the formula of assessing the merit at the written test is bad in law and therefore, the form ula suggested in the Rule to that extent, is violative of Article 14 of the Cons titution and accordingly struck down. As suggested by the Supreme Court, when there are multiple examiners val 17. uing the same subject paper, moderation formula is to be adopted and it is held to be more suitable and proved to be the best formula in assessment of the merit . The law laid down by the Supreme Court in Sanjay Singh case necessarily has to be followed being the law of the land under Article 141 of the Constitution of India. 18. The petitioner Nos. 2 and 3 in WP(C) No. 4415 of 2008, in fact, have obt ained higher raw marks than the candidates, who are called for interview and the petitioner No. 1 has secured law marks equivalent to respondent No. 9, who is c alled for interview. The other petitioners are concerned; the marks obtained by them are below the marks obtained by the respondents, who are called for intervi ew. Since the petitioner Nos. 1 to 4 in WP(C) No. 4415 of 2008 have withdrawn th e petition, therefore, their petition have to be dismissed and other petitioners , who are prosecuting would not be entitled to any relief because the raw marks obtained by them are below the raw marks obtained by the respondents. Accordingl y the WP(C) No. 4415 of 2008. In WP(C) No. 502 of 2009, the raw marks obtained by the petitioner is hi 19. gher than some of the respondents, who are called for the interview, therefore, it is just and necessary that the petitioner should be interviewed and upon asse ssment of her merit in viva voce, the selection is to be made in accordance with law. 20. The respondents, who are selected, are already in service for the past 5 years. The Supreme Court in Sanjay Singh case in a similar situation held that the persons, who have been selected, need not be disturbed and directed that the petitioners in the cited case should be appointed to the vacant post. 21. In the present case, the total cadre strength is 34, 13 posts are filled up in respect of 21 posts, stay has been granted by the Supreme Court for selec tion. In that view of the matter, it is directed that in the event the petitione r becomes eligible for selection, subject to her performance in viva voce, the S tate shall create superannuary post and shall appoint the petitioner in WP(C) No . 502 of 2009, subject to the result of the case pending before the Supreme Cour t with reference to 21 posts where stay is granted. In the event appointments of these petitioners to superannuary posts in future, it can be adjusted towards t Accordingly the WP(C) No. 502 of 2009 is allowed in the terms indicated he regular vacancies. 22. above. 13. tment and it will not affect the appointments already made. The ratio laid down shall have prospective application for future appoin