Taniya Malik v. the Registrar General of the High Court of Delhi
ARUN MISHRA, J. 1. The writ petitions have been filed under
Article 32 of the Constitution of India, questioning the Delh i Judicial
Service, 2015 Examination for which an advertisement was issue d on
3.10.2015. 100 vacancies were advertised. The examination was to be
held in two stages – preliminary, thereafter, – main examination (written)
for selection of candidates for viva voce. Out of the 100 posts advertised,
68 were of the General Category; SC 12; ST 20; out of them 41, 7 and
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI
17 were the backlog vacancies of respective categories. Two vacancies
were reserved for physically handicapped (blind/low vision ) and two
vacancies for physically handicapped candidates (Or tho.). The
appointments were to be subject to the outcome of W.P. (C) No. 514 of
2015 and C.A. No.1086 of 2013 pending in this Court and W.P. (C) No.
2828 of 2010 pending in the High Court of Delhi.
2. In Writ Petition[C] No.764 of 2017 – Taniya Malik v.
Registrar General of the High Court of Delhi , prayer has been made
to reduce the minimum cut off marks of individual subjects from 40% to
33% and in the alternative, the Delhi High Court be directed to relax the
criteria for calling for interview.
3. Petitioner has urged that result of the main examination was
announced on 12.7.2017. In the preliminary examination that was held,
out of 8534 candidates, 914 cleared it and they appeared in the main
examination. As per the advertisement, the candidates were required to
obtain 50% marks in aggregate and 40% in each subject in the main
examination to be eligible to be called for interview. The result of the
main examination was announced on 12.7.2017 and only 64 students, 58
from general category and 6 from reserved category were selecte d for
viva voce test. The petitioner contended that normally for an interview,
three times the number of incumbents are to be called as compared to
the number of seats notified as apparent from past practice. The petitioner
submitted a representation for rationalizing the minimum qualifying marks
to 33% instead of 40%. However needful was not done.
4. In W.P.[C] No.832 of 2017 prayer has been made to direct re-
evaluation of all the papers of the said examination by an independent
Expert Committee headed by a retired Judge of this Court. Alternative
prayer has been made to direct re-evaluation of the answe r-sheet of
criminal law paper of the main examination of the petitioner. Prayer has
also been made to direct moderation of marks obtained by the candidates
in the Examination of 2015 in the light of the decision of this Court in
Sanjay Singh & Anr. v. U.P. Public Service Commission, Allahabad
& Anr. (2007) 3 SCC 720, and to quash the criteria of calling for viv a
voce for those candidates who had obtained 40% marks in each written
paper as provided under Rule 15 of the Delhi Judicial Services Rules,
1970. It is averred that as only a minuscule number of 24 candidate s
could obtain more than 50% marks in Criminal Law paper, prima facie
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it appears that Criminal Law paper has been very strict ly marked and
marks given do not reflect the actual performance of the candidates.
5. In W.P. [C] No.996 of 2017 – Ms. Swati Gupta v. Registrar
General, High Court of Delhi , a prayer has been made to quash the
result of the examination and prayer for revaluation of the p apers has
been made. Petitioner has obtained 49.9% marks. She has prayed that it
be rounded off to 50% as is normally done and she should be called for
interview.
6. In WP [C] No.1081 of 2017 – Naveen v. Registrar General,
High Court of Delhi , prayer has been made to set aside the result of
viva voce dated 25.9.2017 so far as the petitioner has been declared not
qualified in viva voce test and to declare him qualified for selection on
the vacant post available in his reserved category or to conduct fresh
viva voce and the provision prescribing minimum marks for viva voce of
judicial services is unreasonable. Petitioner has been awarded 37%
marks; whereas the required minimum was 45% marks in viva voc e.
Total 64 candidates were called for interview as against 100 vacancies
that were advertised and 63 have been selected. Only the petitioner had
been declared failed in the viva voce examination. The High Court should
have relaxed the marks for interview. In rest of petitions, the relief prayed
is more or less similar to aforesaid writ petitions.
7. In the counter affidavit filed by the Registrar General of High
Court Delhi, it is contended that after participating in the process of
selection under the Delhi Judicial Services Rules, 1970 (for short, ‘the
1970 Rules’), it is not open to question the process of the examination.
The preliminary examination is a screening test carrying maximum marks
of 200. Minimum qualifying marks in the preliminary examination were
60% for general and 55 for reserved categories. The main examination
(written) consisted of 4 papers, namely, G.K. & Language, Civil Law-I,
Civil Law-II and Criminal Law and carried a weightage of 250, 200, 200
and 200 marks respectively. Each paper is divided into two parts, viz .,
Part A and Part B. A separate individual examiner examined each part
of all the papers. There were no multiple examiners for each part.It was
necessary to obtain minimum 40% marks and 35% marks respectively
in each of the four papers; total of Part A and Part B, and also secure at
least 50% marks and 45% marks respectively in aggregate in al l the
four papers in order to qualify for the next stage i.e. viva voce.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
8. It is further pleaded that calling the number of candidates would
depend upon the number of qualified candidates in t he written
examination. Unqualified candidates could not have been called f or
interview. Senior-most officers of the Delhi Higher Judici al Services
were responsible for setting up of the examination papers and evaluating
the answer-sheets. As a separate individual examiner did the evaluation,
the question of moderation/rationalization as demanded by the petitioners
did not arise. The practice adopted for evaluation of answer sheet is that
the roll number is kept secret from the examiner. A c ode number is
written on both sides of the first page of answer-sheet. Copies of answer-
sheets were supplied to the petitioner after the declaration of the result.
In CPIL v. Registrar General of High Court of Delhi in W.P. [C]
No.514 of 2015, the suggestions given by this Court were to be kept in
view for future examinations. The order was passed on 26.7.2016 much
after the main examination had been held. The modal ities of the
examination had been worked out much before the decision of this Court
in the said matter. Thus, it was not possible to implement the said decision.
There is no procedure or provision for revaluation of answer-sheets in
the said examination held for 2015 vacancies under the 1970 Rules. No
model answers were provided to the examiners.
9. In the case of Naveen v. Registrar General, High Court of
Delhi, W.P. [C] No.1081 of 2017 it is the stand taken that viva voce
carries 150 marks; candidates in General Category must secur e 50%
marks and candidates of Reserved Category must secure 45% marks to
be eligible for recommendation for appointment to the service. The marks
obtained in the viva voce were to be added to the marks obtained in the
main examination to determine the merit position of the s uccessful
candidates. The petitioner secured only 55 marks out of 150 marks, i.e.
37%, hence, was not eligible for being recommended for appointment to
the service. Even though all the vacancies could not be filled, it does not
imply that the cut off of 45% marks fixed for interview should be removed.
Fixation of cut off marks could not be said to be arbitrary or unreasonable.
Viva-voce plays an important role in judging candidates’ caliber/personality,
perception and suitability.
10. Learned counsel appearing for the petitioners urged that fixation
of 40% cut off marks in written paper was not appropriate . Even the
candidate who has secured the highest marks could not obtain the requisite
minimum marks in one of the papers and missed by a whisker i.e. by
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one mark. There was an unduly harsh marking of criminal law paper.
Only a few candidates could obtain more than 50% marks. It do es not
sound to logic that the candidate who has obtained highest mark s in
aggregate, would fail in one of the papers, thus the case is fit for directing
the moderation as held in Sanjay Singh (supra) and Ajithkumar P. &
Ors. v. Remin K.R. & Ors. (2015) 16 SCC 778. Reliance has also been
placed on the decision in Sujasha Mukherji v. The Hon’ble High Court
of Calcutta & Ors. (2015) 11 SCC 395. Prayer has also been made to
reduce the cut off in written papers to 33% from 40%. In the case of
Swati Gupta (supra), additional ground has been urged to round off the
marks from 49.9% to 50% to make her eligible for viva voce. In the
case of WP [C] No.832/2017 – Charu Dhankar v. Registrar General
of the High Court of Delhi, in addition, it was urged that revaluation of
answer-sheets of criminal law paper be ordered and the requirement of
obtaining 40% marks be set aside. In the case of Naveen v. Registrar
General, High Court of Delhi , a prayer has been made not to fix the
minimum marks for viva voce. It was urged that fixation of mi nimum
passing marks in interview was unreasonable and alternative prayer has
been made to relax the minimum passing marks for the SC c ategory
candidates for selection. It was urged that petitioner was the only person
who has failed in the interview. Out of 64 candidates, 63 had been cleared
in interview.
11. Per contra , it was contended on behalf of the High Court of
Delhi that in case of Sanjay Singh (supra), there were multiple examiners
as such moderation was ordered. In case where a single examin er has
examined all the papers, moderation is not at all required. Minimum pass
marks have been fixed considering the importance of the Higher Judicial
Service and as the appointment was to be made on the post of Hi gher
Judicial Service. Minimum marks for interview were a lso rightly
prescribed. In the written examination it was necessary to obtain aggregate
of 50% for General Category, thus there was no question of rounding
off. A candidate who obtains lesser marks than the minimum prescribed
for aggregate could not have been called for interview by the process of
rounding off. Lower marks were prescribed for reserved c ategory
candidates as compared to General Category candidates. For Ge neral
Category, passing marks in interview were 50% whereas passing marks
for reserved category candidates were 45%.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
12. First we take up the question whether moderation is required
to be ordered. Moderation is an appropriate method to br ing about
uniformity in evaluation. When several examiners manually evaluate
answer-scripts of respective/conventional type question papers in regard
to the same subject, moderation is adopted as a method to reduce
examiner’s variability. For the purpose of issuance of direction for
moderation reliance has been placed on the decision of this C ourt in
Sanjay Singh (supra) in which, it was observed:
“23. When a large number of candidates appear for a n
examination, it is necessary to have uniformity and consistency in
valuation of the answer- scripts. Where the number of candidates
taking the examination are limited and only one exa miner
(preferably the paper-setter himself) evaluates the answer-scripts,
it is to be assumed that there will be uniformity in the valuation.
But where a large number of candidates take the examination, it
will not be possible to get all the answer-scripts evaluated by the
same examiner. It, therefore, becomes necessary to distribute the
answer-scripts among several examiners for valuation with the
paper-setter (or other senior person) acting as the Head Examiner.
When more than one examiner evaluate the answer-scripts relating
to a subject, the subjectivity of the respective examiner will creep
into the marks awarded by him to the answer- scripts allotted to
him for valuation. Each examiner will apply his own yardstick to
assess the answer-scripts. Inevitably therefore, ev en when
experienced examiners receive equal batches of answer scri pts,
there is difference in average marks and the range of marks
awarded, thereby affecting the merit of individual candidates. This
apart, there is ‘Hawk-Dove’ effect. Some examiners ar e liberal
in valuation and tend to award more marks. Some examiners are
strict and tend to give less marks. Some may be moderate a nd
balanced in awarding marks. Even among those who are liberal
or those who are strict, there may be variance in the degree of
strictness or liberality. This means that if the same answer-script
is given to different examiners, there is all likelihood of different
marks being assigned. If a very well written answer-scrip t goes
to a strict examiner and a mediocre answer-script goes to a liberal
examiner, the mediocre answer-script may be awarded m ore
marks than the excellent answer-script. In other words, ther e is
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‘reduced valuation’ by a strict examiner and ‘enhanced valuation’
by a liberal examiner. This is known as ‘examiner variability’ or
‘Hawk-Dove effect’. Therefore, there is a need to evo lve a
procedure to ensure uniformity interse the Examiners so that the
effect of ‘examiner subjectivity’ or ‘examiner variab ility’ is
minimised. The procedure adopted to reduce examiner subjectivity
or variability is known as moderation. The classic method of
moderation is as follows:
(i) The paper-setter of the subject normally acts as the Head
Examiner for the subject. He is selected from amongst senior
academicians/scholars/senior civil servants/Judges. Where t he
case of a large number of candidates, more than one examiner is
appointed and each of them is allotted around 300 answer-scripts
for valuation.
(ii) To achieve uniformity in valuation, where more than one
examiner is involved, a meeting of the Head Examiner with all the
examiners is held soon after the examination. They di scuss
thoroughly the question paper, the possible answers an d the
weightage to be given to various aspects of the answers. They
also carry out a sample valuation in the light of their discussions.
The sample valuation of scripts by each of them is revie wed by
the Head Examiner and variations in assigning marks are further
discussed. After such discussions, a consensus is arrived at i n
regard to the norms of valuation to be adopted. On that basis, the
examiners are required to complete the valuation of answer scripts.
But this by itself does not bring about uniformity of assess ment
inter se the examiners. In spite of the norms agree d, many
examiners tend to deviate from the expected or agreed norms, as
their caution is overtaken by their propensity for stric tness or
liberality or eroticism or carelessness during the course of valuation.
Therefore, certain further corrective steps become necessa ry.
(iii) After the valuation is completed by the examiners, the Head
Examiner conducts a random sample survey of the correcte d
answer scripts to verify whether the norms evolved in the meetings
of examiner have actually been followed by the examiners. The
process of random sampling usually consists of scrutiny of some
top-level answer scripts and some answer books selected at random
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
from the batches of answer scripts valued by each examiner. The
top-level answer books of each examiner are revalued by the
Head Examiner who carries out such corrections or alterations in
the award of marks as he, in his judgment, considers best, to
achieve uniformity. (For this purpose, if necessary certain statistics
like distribution of candidates in various marks ranges, the average
percentage of marks, the highest and lowest award of marks etc.
may also be prepared in respect of the valuation of each examiner.)
(iv) After ascertaining or assessing the standards adopted by each
examiner, the Head Examiner may confirm the award of marks
without any change if the examiner has followed the agreed norms,
or suggest upward or downward moderation, the quantum of
moderation varying according to the degree of liberality or strictness
in marking. In regard to the top level answer books revalued b y
the Head Examiner, his award of marks is accepted as fi nal. As
regards the other answer books below the top level, to achi eve
maximum measure of uniformity inter se the examiners, the awards
are moderated as per the recommendations made by the Head
Examiner.
(v) If in the opinion of the Head Examiner there has been erratic
or careless marking by any examiner, for which it is not feasible
to have any standard moderation, the answer scripts valued by
such examiner are revalued either by the Head Examiner or any
other Examiner who is found to have followed the agreed norms.
(vi) Where the number of candidates is very large an d the
examiners are numerous, it may be difficult for one Head Examiner
to assess the work of all the Examiners. In such a situation, one
more level of Examiners is introduced. For every ten or twen ty
examiners, there will be a Head Examiner who checks the random
samples as above. The work of the Head Examiners, in turn, i s
checked by a Chief Examiner to ensure proper results.
The above procedure of ‘moderation’ would bring in considerable
uniformity and consistency. It should be noted that a bsolute
uniformity or consistency in valuation is impossible to achieve where
there are several examiners and the effort is only to ac hieve
maximum uniformity.
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27. But some Examining Authorities, like the Commission, are of
the view that scaling can be used, not only where there is a need
to find a common base across different subjects (that is bringing
the performance in different subjects to a common scal e), but
also as an alternative to moderation, to reduce examiner variability
(that is where different examiners evaluate answer scripts relating
to the same subject).”
13. This Court in Sanjay Singh (supra) has laid down moderation
to be appropriate where there are multiple examiners of the same subject.
It has also been observed that where a number of candidates are limited
and only one examiner will evaluate, it is to be assumed that there will be
uniformity in valuation. That is only where several examiners evaluate
the same subject. There is difference in average marks and range of
marks awarded. There is a ‘hawk-dove’ effect. Some examine rs are
liberal and they award more marks; some examiners are strict and they
give fewer marks, the same may be moderated. There may be variance
in degree of strictness and liberality. It is in orde r to remove the
subjectivity or variability, that the provision of moderation is adopted. It
is not the situation in the instant case, hence, the decision in Sanjay
Singh (supra) rather than buttressing negates the plea of moderat ion
urged on behalf of the petitioners.
14. In relation to plea of moderation, reliance has also been placed
on the decision of this Court in Sujasha Mukherji v. High Court of
Calcutta through Registrar & Ors. (2015) 11 SCC 395. In the said
case there were three examiners i.e. multiple examiners and moderation
had not been adopted. Only re-assessment was carried out. The proper
mode of moderation was not followed as observed in Sanjay Singh
(supra). Mean marks were not computed to liquidate ‘ hawk-dove’
syndrome. Marks awarded by the first examiner were more or less
unchanged as compared to other. In the said context, this Court in
Sujasha Mukherjee (supra) has observed:
“11. Revaluation as envisaged in the paragraph 23 of Sanjay Singh
v. U.P. Public Service Commission (2007) 3 SCC 720 has to be
undertaken by the Head Examiner/Paper Setter who, a s has
already been noted, is non-existent in the present case. The effort
would be to eradicate the ‘hawk-dove’ syndrome, and this is
achieved by computing the ‘mean’ and, thereafter, to add or deduct,
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
across the board, in all the Answer-sheets. It cannot be disputed
that this is not what has transpired in the present case since quite
apparently moderation has been carried out in respect of the
assessment/marking of the 2nd Examiner and that too in Pa per
No. II. So far as most of the candidates whose answer scrip ts
had been reassessed afresh, the reduction averages 10 mar ks
which, therefore, constitutes the mean. Therefore, the deduction
of as many as 18 marks so far as the Appellant is concern ed is
not logical or justified as a consequence of moderation. We also
think that a moderator should give a long and serious thought to
the correctness of his assessment on the realization he finds that
the top-most candidate stands disqualified by the purp orted
exercise of moderation. As we have already noted above, instead
of deducting 18 marks if even 15 marks had been deducted, the
Appellant who has scored the highest marks before moderation
and the second highest marks even after moderation, would have
qualified for being called to the Interview/viva voce. A g rave
injustice has been caused to the Appellant. The learned Division
Bench should have been alive to this injustice since it had before
it the judicial determination of the learned Single Judge. We shall
abjure from making any further observation.”
It is apparent that in Sujasha Mukherjee (supra) the method of
moderation as envisaged in Sanjay Singh (supra) was not followed. As
such this Court interfered. However, in the instant case as it is not disputed
that only one examiner had evaluated the same part of the one subject.
In our considered opinion it was not necessary to undertake the process
of moderation.
15. Now we take up the second submission with respec t to
revaluation of answer-scripts. It is settled proposition of law that in the
absence of provision it cannot be ordered. In Himachal Pradesh Public
Service Commission v. Mukesh Thakur & Anr. (2010) 6 SCC 759,
this Court has considered various decisions and observed:
“24. The issue of revaluation of answer book is no more res integra.
This issue was considered at length by this Court in Maharashtra
State Board of Secondary and Higher Secondary Education and
Anr. v. ParitoshBhupeshKurmarsheth wherein this Court rejected
the contention that in absence of provision for re-evalua tion, a
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direction to this effect can be issued by the Court. The Cour t
further held that even the policy decision incorporated in the Rules/
Regulations not providing for rechecking/verification/re-evaluation
cannot be challenged unless there are grounds to show that the
policy itself is in violation of some statutory provision. The Court
held as under: (SCC pp. 39-40 & 42, paras 14 & 16)
“14. ...It is exclusively within the province of the legislature
and its delegate to determine, as a matter of policy, how the
provisions of the Statute can best be implemented and wh at
measures, substantive as well as procedural would have to be
incorporated in the rules or regulations for the effica cious
achievement of the objects and purposes of the Act...
X xxxx
16. ...The Court cannot sit in judgment over the wisdom of the
policy evolved by the legislature and the subordinate regulation-
making body. It may be a wise policy which will fully effectuate
the purpose of the enactment or it may be lacking i n
effectiveness and hence calling for revision and improvement.
But any draw-backs in the policy incorporated in a rule or
regulation will not render it ultra vires and the Court cann ot
strike it down on the ground that in its opinion, it is not a wise
or prudent policy, but is even a foolish one, and that it will not
really serve to effectuate the purposes of the Act. “
25. This view has been approved and relied upon and re-iterated
by this Court in Pramod Kumar Srivastava v. Bihar Public Service
Commission, (2004) 6 SCC 714 observing as under: (SCC pp.
717-18, para 7)
“7. ….Under the relevant rules of the Commission, there is no
provision wherein a candidate may be entitled to ask for re-
evaluation of his answer-book. There is a provision for scrutiny
only wherein the answer-books are seen for the purpose of
checking whether all the answers given by a candidate have
been examined and whether there has been any mistake in the
totaling of marks of each question and noting them correctly
on the first cover page of the answer-book. There is no dispute
that after scrutiny no mistake was found in the marks awarded
to the appellant in the General Science paper . In the absence
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
of any provision for re-evaluation of answer-books in the
relevant rules, no candidate in an examination has got any right
whatsoever to claim or ask for re-evaluation of his marks.”
(emphasis adde d)
A similar view has been reiterated in Dr. Muneeb-Ul-Rehm an
Haroon (Dr.) v. Govt. of J&K State (1984)4 SCC 24; Board of
Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383;
Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603;
W.B. Council of Higher Secondary Education v. Ayan Das
(2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health
Sciences (2009) 1 SCC 599.
26. Thus, the law on the subject emerges to the effect that in
absence of any provision under the Statute or Statutory Rules /
Regulations, the Court should not generally direct revaluation.”
In Mukesh Thakur (supra) it was laid down that in the absence
of provision for re-evaluation it cannot be resorted to and the observations
which were made in the case of CPIL v. Registrar General of High
Court of Delhi (supra), the decision was rendered in 2016 after the
examination had already been held, thus the provision for re-evaluation
could not have been introduced after the examination had been held. In
our opinion, for examination in question in the absence of provision for
revaluation when the examination was held, it could not be resorted to.
16. Coming to the question of prescribing the minimum pass marks
in the viva voce examination, in our opinion it is rightly observed by this
Court in K.H. Siraj v. High Court of Kerala & Ors. (2006) 6 SCC
395, that interview is the best method to assess the ability of the candidate
and to judge the capacity and minimum marks can also be prescribed. In
case a candidate fails in an interview it cannot be said that he is suitable
for the job of a Munsif Magistrate. This Court observed:
“54. In our opinion, the interview is the best mode of assessing
the suitability of a candidate for a particular position. While the
written examination will testify the candidates’ ac ademic
knowledge, the oral test alone can bring out or disclose his overall
intellectual and personal qualities like alertness, resourcefulness,
dependability, capacity for discussion, ability to take decis ions,
qualities of leadership etc. which are also essential for a judicial
officer.
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55. We may usefully refer to a decision of this Court in Lila Dhar
v. State of Rajasthan (1981) 4 SCC 159 in which this C ourt
observed as under:
“The object of any process of selection for entry into a
public service is to secure the best and the most suitable
person for the job, avoiding patronage and favouritism.
Selection based on merit tested impartially and objectively,
is the essential foundation of any useful and efficient public
service. So, open competitive examination has come to be
accepted almost universally as the gateway to publi c
services.
‘The ideal in recruitment is to do away with unfairness.’
(SCC pp. 162-63, para 4)
* * *
‘A system of recruitment almost totally dependent o n
assessment of a person’s academic knowledge and skills,
as distinct from ability to deal with pressing problems of
economic and social development, with people, and with
novel situations cannot serve the needs of today, much less
of tomorrow...We venture to suggest that out recruitment
procedures should be such that we can select candidates
who cannot only assimilate knowledge and sift material to
understand the ramifications of a situation or a problem but
have the potential to develop an original or innovative
approach to the solution of problems.’
It is now well recognised that while a written examination assesses
a candidate’s knowledge and intellectual ability, an interview test
is valuable to assess a candidate’s overall intellectual and personal
qualities. While a written examination has certain distinct advantage
over the interview-test there are yet no written tests whi ch can
evaluate a candidate’s initiative, alertness, resour cefulness,
dependableness, cooperativeness, capacity for clear and logical
presentation, effectiveness in discussion, effectiveness in meeting
and dealing with others, adaptability, judgment, ability to make
decision, ability to lead, intellectual and moral integrity. (SCC p.163,
para5)
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
***
‘While we do feel that the marks allotted for interview are on
the high side and it may be appropriate for the Government to
re-examine the question, we are unable to uphold the contention
that it was not within the power of the Government to provide
such high marks for interview or that there was any arbitrary
exercise of power. (SCC p.166, para 9)”
56. In Mohan Kumar Singhania and Ors. v. Union of India and
Ors. : AIR 1992 SC 1, S. Ratnavel Pandian, J. speaking for the
Bench, observed as under: (SCC p.608, paras 18-21)
“18. Hermar Finer in his textbook under the caption The
Theory and Practice of Modern government states:
‘The problem of selection for character is still the pons
asinorum of recruitment to the public services everywhere.
The British Civil Service experiments with the interview.’
19. The purpose of viva voce test for the ICS Examination
in 1935 could be best understood from the following extract
of the Civil Service Commission’s pamphlet:
‘Viva Voce - the examination will be in matters of general
interest: it is intended to test the candidate’s alertn ess,
intelligence, and intellectual outlook. The candidate will be
accorded an opportunity of furnishing the record of his life
and education.’
20. It is apposite, in this connection, to have reference to an
excerpt from the United Nations Handbook on Civil
Service Laws and Practice , which reads thus:
“...the written papers permit an assessment of culture
and intellectual competence. This interview permits an
assessment of qualities of character which written papers
ignore; it attempts to assess the man himself and not his
intellectual abilities.”
21. This Court in Lila Dhar v. State of Rajasthan (1981) 4
SCC 159 while expressing the view about the importance
and significance of the two tests, namely, the written and
interview has observed thus: (SCC p.164, para 6)
367
‘...the written examination assess the man’s intellect
and the interview test the man himself and ‘the twain shall
meet’ for a proper selection.’ “
57. The qualities which a Judicial Officer would possess
are delineated by this Court in Delhi Bar Association v.
Union of India (2002) 10 SCC 159. A Judicial Officer
must, apart from academic knowledge, have the capacity
to communicate his thoughts, he must be tactful, he must
be diplomatic, he must have a sense of humour, he must
have the ability to defuse situations, to control the examination
of witnesses and also lengthy irrelevant arguments and the
like. Existence of such capacities can be brought out only
in an oral interview. It is imperative that only persons with
a minimum of such capacities should be selected for the
judiciary as otherwise, the standards would get diluted and
substandard stuff may be getting into the judiciary .
Acceptance of the contention of the appellants/petitioners
can even lead to a postulate that a candidate who scores
high in the written examination but is totally inadequate for
the job as evident from the oral interview and gets 0 marks
may still find it a place in the judiciary. It will spell disaster
to the standards to be maintained by the subordinat e
judiciary. It is, therefore, the High Court has set a benchmark
for the oral interview, a benchmark which is actually low
as it requires 30% for a pass. The total marks for the
interview are only 50 out of a total of 450. The prescription
is, therefore, kept to the bare minimum and if a candidate
fails to secure even this bare minimum, it cannot b e
postulated that he is suitable for the job of Munsif Magistrate,
as assessed by five experienced Judges of the High Court.”
17. In our considered opinion, it is desirable to have the interview
and it is necessary to prescribe minimum passing marks for the same
when the appointment in the higher judiciary to the post of District Judge
is involved. The interview is the best method of judging the performance,
overall personality and the actual working knowledge and capaci ty to
perform otherwise the standard of judiciary is likely to be compromised.
A written examination only tests academic knowledge, which is som e
time, gained without possessing overall qualities, practical experience of
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
practice and law. In written exam, even the person with no caliber who
takes decision by cramming may obtain better marks. When the Judges
of the High Court too are appointed by adjudging the performance and
intellect, an interview would be indispensable for judici al post. As
ultimately, they also come to adorn the chair of a Judge and Judges of
subordinate and higher judiciary to deliver justice to masses, the criteria
of experience of practice for direct recruitment of 7 years whether
actually gained can be adjudged only by interview, communicating skills
and by elucidation of certain aspects which would not be p ossible by
written exam alone. In Siraj (supra), it was emphasized that interview
is the main fulcrum for judging the suitability of the candi date for
appointment as District Judge in the higher judiciary. In our opinion that
is absolutely necessary. When we consider past practice ea rlier when
the written examination was not prescribed, the High Court used to select
the candidates for higher judiciary only by the method of interview. Now
additional safeguards of written examination have been ad ded. The
importance of interview for the post of the higher judiciary has increased
than ever before it is absolutely necessary to weed out unworthy elements/
crammers and in our considered opinion it is not only appropri ate but
also absolutely necessary to prescribe the minimum pass marks so as to
weed out unworthy element so as to segregate grain from the c haff.
There is a vast difference between having the experience that is required
for a Judge that cannot solely be adjudged on the basis of w ritten
performance, and for which overall personality, intel ligence test is
absolutely necessary. Without that it would not be appropriate to make
appointments in judiciary. Thus in our opinion the prescription of minimum
45% marks for reserved category candidates could not be said to be
uncalled for. Merely by the fact that some more posts were advertised
and they are lying vacant, it could not have been a ground to rel ax the
minimum marks for interview after the interview has already been held.
It would not have been appropriate to do so and the High Cour t has
objected to relaxation of minimum passing marks in viva voce examination
in its reply and as the power to relax is to be exercised by the High Court
and since it has opposed such a prayer on reasonable ground and t he
institutional objective behind such prescription, we are not inclined to
direct the High Court to relax the minimum marks.
18. It was urged that out of 64 candidates, only one has failed in
the interview. That, in fact, does not show the prejudice but is rather
369
indicative of the fact that the performance of the petitione r was such
that in spite of the Committee being most liberal, it did not find it
appropriate to award even the minimum passing marks to t he said
candidate. In our opinion, the awarding of marks by the Committee could
not be said to be inappropriate. No malice has been attributed; as such
we find no scope for interference on the aforesaid ground. Reliance has
been placed on Ajithkumar (supra) in which the Commission has relaxed
the criteria to call various reserved category candidates w ho secured
marks out of the cut off marks. This Court has observed that challenge
to the decision of the Service Commission to relax cut off marks with
respect to reserved category candidates could not succeed in the earlier
round of litigation. There was relaxation of cut off marks for res erved
category candidates in the preliminary examination not governed by rules.
In the instant case in the rules, the minimum cut off is prescribed. That
could not have been relaxed and moreover, relaxation is a matter of
policy and considering the overall circumstances, importance of interview,
the decision not to relax cannot be said to be unreasonable. The decision
has no application.
19. Even otherwise the petitioners have undertaken the exam with
the stipulation of minimum cut off marks in written and oral examination
and then having failed, they cannot turn round and are estopped to contend
to the contrary. This Court in K. Siraj (supra) has observed that when
the candidates participated in the interview with the knowledge that for
selection they have to clear the prescribed minimum pass marks, on
being unsuccessful in interview, could not turn around and challenge that
the prescription of minimum marks was improper. They are estopped to
contend it as observed in K.H. Siraj (supra) thus:
“72. The appellants/petitioners, in any event, are not enti tled to
any relief under Article 226 of the Constitution of India for more
reasons than one. They had participated in the written test and in
the oral test without raising any objection. They knew well from
the High Court’s Notification that a minimum marks had to be
secured both at the written test and in the oral test. They were
also aware of the High Court decision on the judicial side reported
in Remany v. High Court of Kerala 1996 (2) KLT 439. This case
deals with prescription of minimum qualifying marks of 30% for
viva voce test. C.S. Rajan, J., in the above judgment, observed as
under: (KLT pp.441-42, para 5)
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
“....On the basis of the aggregate marks in both the tests, the
selection has to be made. In I.C.A.R’s case, also the rel evant
rules did not enable the selection Board to prescribe mini mum
qualifying marks to be obtained by the candidate at the viva voce
test. In the Delhi Judicial Service’s case (1985) 3 SCC 721 also
Umesh Chandra (1985) 3 SCC 721, the rules did not empower
the committee to exclude candidates securing less than 600 marks
in the aggregate. Therefore, in all these cases, the Supreme Court
came to the conclusion that prescription of separate minimum
marks for viva voce test is bad in law because, under the rules, no
minimum qualifying marks were prescribed.
The High Court also relied on P.K. Ramachandra Iyer’s case
(1984) 2 SCC 141 and Umesh Chandra’s case (Supra).
73. The appellants/petitioners having participated in the interview
in this background, it is not open to the appellants/petitioners to
turn round thereafter when they failed at the interview and contend
that the provision of a minimum mark for the interview was not
proper. It was so held by this Court in paragraph 9 of Madan Lal
and Ors. v. State of J & K [1995] 3 SCC 486 as under: (SCC
p.493)
“9. Before dealing with this contention, we must keep in view
the salient fact that the petitioners as well as the conte sting
successful candidates being respondents concerned herein,
were all found eligible in the light of marks obtained in the
written test, to be eligible to be called for oral interview. Up to
this stage, there is no dispute between the parties . The
Petitioners also appeared at the oral interview conducted by
the Members concerned of the Commission who interviewed
the petitions as well as the contesting respondents concerned.
Thus the petitioners took a chance to get themselves selected
at the said oral interview. Only because they did not find
themselves to have emerged successful as a result of their
combined performance both at written test and oral interview,
they have filed this petition. It is now well settled tha t if a
candidate takes a calculated chance and appears at the
interview, then, only because the result of the interview is not
palatable to him, he cannot turn round and subsequently contend
that the process of interview was unfair or the Sele ction
371
Committee was not properly constituted. In the case of Om
Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC
285, it has been clearly laid down by a Bench of three learned
Judges of this Court that when the petitioner appeared at t he
examination without protect and when he found that he would
not succeed in examination he filed a petition challenging the
said examination, the High Court should not have granted any
relief to such a petitioner.”
74. Therefore, the writ petition filed by the appellants/petitioners
should be dismissed on the ground of estoppel is correct in view
of the above ruling of this Court. The decision of the High Court
holding to the contrary is in per incuriam without reference to the
aforesaid decisions.”
20. With regard to question as to rounding off of the marks, in our
opinion, when a particular aggregate is prescribed for eligibility, a person
must meet the criteria without relaxation. It is not permissible to enhance
the marks by rounding off method to make up the minimum aggregate.
21. This Court, in The Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore vs. G. Hemlatha and Ors. , (2012) 8 SCC
568, held as impermissible the rounding-off of eligibility criteria in relation
to qualifying examination for admission to the PG Course in MSc
(Nursing). Relying upon the decision rendered in Orissa Public Service
Commission & Anr. vs. Rupashree Chowdhary and Anr., (2011) 8
SCC 108, this Court observed:
“8. In Orissa Public Service Commission and Anr. v.
Rupashree Chowdhary and Anr. (2011) 8 SCC 108 this Court in
somewhat similar fact situation considered whether the eligibility
criteria could be relaxed by the method of rounding-off. The Orissa
Public Service Commission published an advertisement inviting
applications from suitable candidates for the Orissa Judicial
Service Examination, 2009 for direct recruitment to fill-up 77 posts
of Civil Judges (JD). Pursuant to the advertisement, the firs t
Respondent therein applied for the said post. She t ook the
preliminary written examination. She was successful in the said
examination. She, then, took the main written examination. The
list of successful candidates, who were eligible for interview, was
published in which the first Respondent’s name was not th ere.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
She received the mark sheet. She realized that she had secure d
337 marks out of 750 i.e. 44.93% of marks in the aggregate and
more than 33% of marks in each subject.
9. As per Rule 24 of the Orissa Superior Judicial Service and
Orissa Judicial Service Rules, 2007 (for short “the Orissa Rules”),
the candidates who have secured not less than 45% of the marks
in the aggregate and not less than a minimum of 33% of marks in
each paper in the written examination should be called for viva
voce test. Since the first Respondent therein had secured 44.93%
marks in aggregate she was not called for interview/viva v oce.
The first Respondent approached the Orissa High Court. The
High Court allowed the writ petition. The appeal from the said
order was carried to this Court.
10. After considering the Orissa Rules, this Court in Rupashree
Chowdhary case (2011) 8 SCC 108 held that Rule 24 thereof
made it clear that
“in order to qualify in the written examination a candidate has
to obtain a minimum of 33% marks in each of the papers and
not less than 45% marks in the aggregate in all the writ ten
papers in the main examination.” (SCC p. 111, para 10)
This Court observed that when emphasis is given in the rule
itself to the minimum marks to be obtained, there can be no
relaxation or rounding-off. It was observed that no power was
provided in the statute/rules permitting any such rounding-off or
giving grace marks. It was clarified that: (SCC p. 112, para 10)
“10…. The [Orissa] Rules are statutory in nature and no dilution
or amendment to such rules is permissible or possible by adding
some words to the said statutory rules for giving the benefit of
rounding-off or relaxation.”
11. In our opinion, the ratio of this judgment is clearly applicable
to the facts of this case. Judgment of the Full Bench of Allahabad
High Court in Vani Pati Tripathi v. Director General, Medical
Education and Training and Ors. AIR 2003 All 164 and judgment
of the Full Bench of Punjab and Haryana High Court in Kuldip
Singh, Legal Assistant, Punjab Financial Corporation v. The
State of Punjab and Ors. (1997) 117 PLR 1, were cited before
373
us because they take the same view. However, in view of the
authoritative pronouncement of this Court in Orissa Public Service
Commission (supra), it is not necessary for us to discuss the said
decisions.
12. No provision of any statute or any rules framed thereunder
has been shown to us, which permits rounding-off of eligibilit y
criteria prescribed for the qualifying examination for admission to
the PG course in M.SC (Nursing). When eligibility criter ia is
prescribed in a qualifying examination, it must be strictly adhered
to. Any dilution or tampering with it will work injustice on other
candidates. The Division Bench of the High Court erred in holding
that learned Single Judge was right in rounding-off of 54.71% to
55% so as to make Respondent 1 eligible for admission to P G
course. Such rounding-off is impermissible.”
22. Thus the principle of rounding off method could not be applied
in view of requirement to obtain minimum aggregate marks to be called
for interview in the instant case.
23. Coming to question whether minimum cut off marks in the
written examination be relaxed from 40% to 33% and whether we should
interfere on the ground that as a person who has obtained the highest
marks, could not clear one of the papers by narrow margin of one mark.
It was also urged that the person having the highest marks has not been
called for interview and as he could not clear the minimum percentage
in one of the written paper and persons having lesser marks in aggregate
have been called for interview. In our opinion minimum-passing marks
in each of the paper could have been prescribed and that is absolutely
necessary so as to adjudge the academic knowledge in various subjects.
Merely by scoring highest marks in general knowledge and lang uage
paper is not going to help. Minimum knowledge in other subjects, civil
and criminal law was also requisite and that is true for vice versa too,
and that is why minimum passing marks had been prescribed and fixation
of 40% was quite reasonable and proper and it would be not proper for
this Court to interfere in the same. We find no fault in presc ribing the
minimum passing marks for written papers. It may hap pen in any
examination that a person who is having better aggregate may not fair
well in one of the papers and may be declared ‘failed’. That cannot be a
ground to order relaxation or to doubt the correctness of the evaluation
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF DELHI [ARUN MISHRA, J.]
process. When we were shown the marks of a candidate who sec ured
highest marks, it became apparent that the performance of the candidate
in paper general knowledge and language was far better as compared to
the performance in civil and criminal papers. Thus when a single examiner,
has done valuation, same yardstick has been applied to all the candidates.
We find no ground to interfere on the various grounds urged by the
petitioners.
24. We place on record as pointed out by learned counsel on
behalf of the High Court of Delhi that suggestions made by this Court in
the decision rendered in CPIL (supra) have been carried out for subsequent
examinations for 2016.
25. Resultantly, we find no ground to make interference. The writ
petitions being devoid of merits are hereby dismissed. No costs.
Ankit Gyan Writ Petitions dismissed.