Pranav Verma & Others v. the Registrar General of the High Court of Punjab and Haryana at Chandigarh & Anr.
JUDGMENT
1. These Writ Petitions under Article 32 of the Constitution have
been filed at the instance of more than 90 candidates challengi ng the
entire selection process and evaluation method adopted in the Main
(Written) Examination of Civil Judge (Junior Division) [herein referred
to as “Main Exam”] in the Haryana Civil Service (Judicial Branch)
Examination – 2017 and seeking to quash the result declared on 11.4.2019
along with the directions to get all the papers of the Main Exam of the
petitioners to be re-evaluated by an Independent Expert Commi ttee,
besides the constitution of an Independent Judicial Service Commission
for conducting examinations for selection of Lower Judicial Officers.
Factual Background
2. Pursuant to the Notification-cum-Advertisement No. 6 of 2016
published on 20.03.2017 [herein after referred to as the “Original
Notification”] for recruitment to 109 posts of Civil Judge (Junior Division)
in Haryana Civil Service (Judicial Branch) – 2017, Preliminary
Examination was conducted on 16.07.2017. However, on account of
question paper-leak, the High Court of Punjab & Haryana scrapped the
said examination on 13.09.2017. Thereafter, 107 posts were re-notified
on 27.08.2018, out of which 75 were meant for General Category and
the remaining 32 were earmarked for Scheduled Castes, Back ward
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Classes (a), Backward Classes (b), Economically Backward Persons in
General Category, Ex-Service Men and Physically Handicapped Persons
of Haryana State.
3. The examination was conducted in accordance with provisions
of Punjab Civil Services (Judicial Branch) Rules, 1951 as applicable to
the State of Haryana and as amended from time to time including vide
notification no. GSR1/Const./Art.234 & 309/2017 dated 09.01.2017. This
examination comprised of three stages –
(I) Preliminary Examination
(II) Main Examination
(III) Viva Voce
4. Marks obtained in the Preliminary Examination were not to be
counted towards final results. The purpose was solely to shortl ist the
candidates for the Main Exam. Candidates equal to 10 times the number
of vacancies advertised, were shortlisted in order of their merit in the
respective categories to enable them to sit in the Main Exam. If two or
more candidates at the last number got equal marks, then all of them
were considered eligible to sit for the Main Exam, war ranting the
corresponding increase in the stipulated ratio.
5. The Main Exam consisted of five papers – Civil Law – I, Civil
Law – II, Criminal Law, English and Hindi. The first four papers were
for 200 marks and Hindi was for 100 marks. In order to qualify for viva-
voce examination, a candidate is required to secure a minimum of 33%
marks in each of the written exam and an aggregate of minim um 50%
marks in all five papers [45% for reserved category]. It i s pertinent to
note that viva-voce is also a part of the Main Exam and tre ated as the
sixth paper of 200 marks. No minimum marks are prescribed for viva-
voce as per the Rules. The candidates equivalent to three ti mes of the
advertised posts, who qualify in the written Exam are called strictly in
order of merit to appear for the viva-voce. Marks obtained in the five
papers are consolidated with the marks obtained in Viva Voce and
accordingly a final merit list is prepared.
6. Preliminary Examination pursuant to the re-notified vacancies
was held on 22.12.2018 and its result was declared on 21.01.2019. Main
Exam was held from 15.03.2019 to 17.03.2019. Results of the Main
Exam were declared on 11.04.2019 wherein only 9 candidates (6 of
General Category and 3 of Reserved Categories) were declared qualified
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and found fit for the Viva Voce. Complete details of the numbe r of
candidates who appeared/qualified in each stage of the selection process
are as follows:–
Candidates appeared in Preliminary Examination 14301
Candidates qualified for Main Exam 1282
Candidates appeared in Main Exam 1195
Candidates found fit for Viva Voce 9(6+3)
7. Aggrieved by their exclusion from amongst the candidates
qualified for viva voce and contending that the entire selection process
is unjust, unfair, arbitrary and violative of Article 14 of the Constitution,
the Petitioners have approached this Court and sought indulgence in
light of the followings:
a. As per the result declared, only 0.702% candidates managed
to pass the Main Exam and the rest 99.298% failed. The
explanation given for this was that no other candidate could
secure a minimum of 33% in each subject and an aggregate of
50% in all five (45% for reserved category).
b. Information obtained through RTI discloses that there was no
marking criteria or model answer key for evaluation of answer
scripts of the Main Exam. Performance of the candidates solely
depended on the discretion of the examiner(s). Further, no
principles governing grace marks were available.
c. The High Court has provided an ineffective and infructuous
remedy of paid re-checking without the disclosure of marks of
candidates who had not qualified.
8. This Court on 29.04.2019 directed the Registrar General of the
High Court to be present in person along with answer scripts of all the
candidates who appeared in the Main Exam. On 03.05.2019, having
considered the grievances of the Petitioners, Hon’ble Mr. A.K. Sikri, J.,
a former Supreme Court Judge was requested to look into some of the
answer scripts of the Main Exam to make an assessment w hether the
evaluation undertaken should be accepted by the Court. On 31.07.2019,
Justice Sikri, after a deep insight and thorough evaluation of the answer
scripts gave his report along with valuable suggestions of paramount
importance.
Report by Hon’ble Justice (Retd.) A. K. Sikri dated
31.07.2019
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
9. Justice Sikri has evaluated the selection process as well as
the evaluation method used in the Main Exam and opined under different
heads as follows:
9.1 Selection Process – It is observed that the selection process
is prima facie faultless. The Co-ordinators of the exam were
highly qualified persons i.e. Vice Chancellors of National Law
Schools or very senior professors, who provided the question
bank to the Recruitment Committee. On this basis, t he
Recruitment Committee formulated the question paper(s) for
the Main Exam. Examination Centre-in-charge handed over
answer scripts of 1195 candidates in sealed iron boxes to the
Registrar-Recruitment. These iron boxes were kept under
strict surveillance round the clock. Also, roll numbers were
concealed on the answer sheets before evaluation. Many
other adequate security measures were also ensured.
9.2 Evaluation Method – To make an assessment on the
evaluation method adopted in the Main Exam, Justice Sikri
randomly selected scripts of 5 candidates who had qualified
the exam and of 5 petitioners. These answer scripts had been
provided to him in Delhi under strict security. Further, to ensure
transparency, he checked answer sheets of some othe r
candidates who had not qualified the Main Exam (other than
petitioners) for which he visited the High Court of Punjab &
Haryana on two occasions- 24.05.2019 and 11.06.2019.
9.3 The purpose to evaluate all the scripts was to compar e the
marks given to the qualified candidates with those who did
not qualify by going through the quality of their answers. He
also had a look at the list of marks obtained by all the
candidates.
9.4 Observations :
Justice Sikri in his report has observed that the evaluati on
done for Criminal Law, English and Hindi papers was
appropriate. He identified the main problem in Civil Law-I
paper and found that there were 18 questions in total in this
paper and all of them were compulsory. Total time for finishing
the paper was 3 hours i.e. 180 minutes. He made an
assessment that if 27 minutes are taken out for reading and
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understanding the questions (1.5 minute per question), then
the candidate was left with 8.5 minutes to answer e ach
question. The questions were descriptive in nature. It is
pertinent to note that the three law papers were evaluated by
fifteen Evaluators by allotting one question to one Evaluator.
Thus, one question was evaluated by one Evaluator only in
all answer scripts and in this manner each answer script was
examined by many Evaluators. He, thus, came to the following
conclusions:
• Marking of Civil Law- I was strict. Evaluators seeme d to
expect long answers for each question covering all aspects
in detail, without recognizing that candidates barely had any
time. Even the candidates who covered all aspects in brief
were not awarded good marks.
• Highest marks in Civil Law- I were 95 out of 200 i.e. 47.5%.
Even, this candidate deserved more marks.
• The method of getting answer scripts evaluated by many
Evaluators was intended to attain uniformity. However, a major
repercussion was that this left the Evaluators with no
opportunity to see overall performance of the candidates and
take a holistic view. Evaluators would have had a realistic
expectation in mind if they checked the complete answer
scripts as opposed to checking only one answer.
• Paper was not difficult but too lengthy. Most of the questions
were descriptive, some replica of bare provisions. Examiner
expected long answers, but the questions were too many and
the marking was extremely strict.
• For Civil Law –II, – attributes pointed in Civil Law – I were
not present. Though, it was noted that suitable marks were
not awarded even when answers were perfect. There was
marginally strict marking.
9.5 Suggestions
Justice Sikri has unambiguously opined that the situation can
be remedied by moderating marks so that more students can
qualify the Main Exam for appearing in Viva Voce. A total of
311 candidates secured more than 33% marks in Civil Law-I
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Paper but they could not secure aggregate 50% marks which
impacted their final result. Accordingly, he has afte r due
deliberations suggested the following three alternatives: –
• Alternative I – 20 Grace Marks i.e. 10% be given in Civil
Law –I . Using this, 28 more candidates (15 General + 13
Reserved) will qualify for Viva Voce making the total number
of qualified candidates to 37.
• Alternative II – 20 Grace Marks i.e. 10% be given to all
candidates in Civil Law-I paper and 10 Grace Marks i.e. 5%
be added in marks secured by all candidates in Civil Law-II
paper. Cumulatively, 30 marks in total will increase. Using this,
60 (33 General + 27 Reserved) candidates will get through to
Viva Voce taking the tally of qualified candidates to 69.
• Alternative III – Moderation be done by giving 35 marks to
all candidates. This will add 42 General Category candidates
and 23 Reserved Category candidates to the existing number
of 9, thereby making a total of 74.
In the concluding remarks, Justice Sikri has recommended use
of Alternative I. But keeping in mind availability of large scale
vacancies, he has also suggested other two alternatives by
virtue of which more candidates can qualify for viva-voce.
Contentions of Petitioners:
10. Learned Counsel for the Petitioners, Mr. Prashant Bhushan
at the outset has pointed out an inadvertent clerical error in the report of
Sikri, J. regarding the number of vacancies allocated for g eneral and
reserved categories, as per the re-notified advertisement. On merits, his
submissions may be summarized as follows:-
10.1 First Alternative sought by the petitioners is re-evaluation
of both the Civil Law-I and Civil Law-II papers by an Independent
Authority as there was strict marking in these papers. For this,
the petitioners lay emphasis on the standards laid down in CPIL
vs Registrar General of High Court of Delhi 1.
10.2 The Second Alternative submission is that 50 grace marks
may be awarded to all the candidates, so the number of candidates
1 (2017) 11 SCC 456
55
qualified for Viva Voce would increase to 150-160 (nearly 1.5
times the number of vacancies available). It is highlighted that no
appointment had been made in Haryana Judicial Service since
2014.
10.3 Shortlisting of sufficient candidates for appearing in viva-
voce is desperately needed so that no seat is left vacant keeping
in mind that many of the candidates have already been selec ted
for various other State Judicial Services. 31 petitioners have
already been appointed in different Judicial Services and many
more would have been appointed from the 1195 candidates who
appeared in the Main Exam. It can be safely inferred that some
of the candidates are likely to drop out of Haryana Judicial Service
Interview process or appointment.
10.4 The petitioners oppose the idea of conducting a fresh
examination because it will only add to the hardships of the
candidates, more so when they have already appeared twice in
the said process.
10.5 The petitioners have highlighted the criteria of obtaining in
aggregate a minimum of 50% marks in six papers (including five
papers of Main Exam and sixth- viva-voce) and expressed thei r
apprehension of scoring low marks in viva-voce due to which
they would not be able to secure the minimum aggregate of 50%
marks to meet the eligibility criteria. The reason of apprehension
is that the same Recruitment Committee constituted by the Punjab
and Haryana High Court has awarded only 8 to 18 marks to a
large number of candidates even though they have secured goods
marks in the written examinations. This Court, therefore, should
employ a moderation technique by which candidates who deserve
the seat can get it.
10.6 Seventy-four candidates who will become successful to
appear for Viva Voce as per Alternative III suggested by Sikri, J.
would only touch the bare minimum marks i.e. 450 marks out of
900 and if they fail to secure 50% marks in Viva Voce then t he
entire exercise would become futile.
10.7 The petitioners, thus, suggest moderation and scaling scientific
techniques to remove variation caused by factors like multip le
examiners, multiple optional subjects with varying difficulty levels
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
or different difficulty levels of the mandatory subjects for all
candidates. These methods, according to them, are used by the
UPSC for administrative appointments and UPPSC for judicia l
recruitments.
10.8 Petitioners and other candidates have immensely suffered in
the last 5 years in anticipation of the exam dates and fair selection
and appointments. They could not engage themselves in any other
career options due to the constant uncertainty.
10.9 The names and subject marks obtained by each candidate
should be disclosed in a consolidated list after the Main Exam and
before the Viva Voce. Similar procedure is followed in Del hi,
Rajasthan etc. to ensure transparency.
10.10 The timelines given in Malik Mazhar Sultan vs. U.P . Public
Service Commission 2should be strictly adhered to. Respondents
should conduct the next examination cycle in a time bound manner.
11. S/Shri Nidesh Gupta and Gurminder Singh, Senior Advocates
representing the Punjab and Haryana High Court, on the other hand,
strenuously opposed the petitioners’ claim and urged that since Justice
Sikri has not found any fault or illegality in the selection process which
has been conducted in most fair and impartial manner unde r strict
adminisrative vigil, there is no necessity for this Court to interfere with
the selection process while exercising the power of judicial review. They
urged that the standards of the examination be not diluted by accepting
the suggestions given by Justice Sikri in his report and the appropriate
recourse would be to re-advertise the vacant posts and make se lection
afresh.
Issues for consideration
12. On a consideration of the rival submissions and on appreciation
of the report submitted by Justice Sikri, it appears that the following
questions arise for our consideration:
(i) Whether selection process and evaluation method is unj ust,
arbitrary and in violation of Article 14 of the Constitution?
(ii) Whether moderation of marks (grace marks) is needed in the
facts and circumstances of the present case?
2 (2008) 17 SCC 703
57
(iii) Whether re-valuation of Civil Law-I and Civil Law-II papers
is required by an Independent Expert Committee?
(iv) Whether the marks obtained in the Main Exam be disclosed
before the viva-voce is conducted?
Analysis of the Issues:
Re: Issue 1
13. The Petitioners contended that the evaluation has been done
without any marking criteria, it lacks uniformity and is in contravention
of the view taken by this Court in the following decisions –
• Sanjay Singh & Anr vs U.P. Public Service Commission 3
• Prashant Ramesh Chakrawar vs UPSC & Ors 4
• Sujasha Mukherji vs High Court of Calcutta 5
• CPIL vs Registrar General of the High Court of Delhi 6
13.1 In Sanjay Singh (supra), this Court analytically went into
inner depth of the scheme of Examination and laid down guidelines
regarding moderation of marks in case of judicial se rvices
examination. It was, thus, held:
“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 limit ed
and only one examiner (preferably the paper-setter himsel f)
evaluates the answer-scripts, it is to be assumed that there
will be uniformity in the valuation. But where a la rge
number of candidates take the examination, it will not be
possible to get all the answer-scripts evaluated by the sa me
examiner. It, therefore, becomes necessary to distribute t he
answer-scripts among several examiners for valuation with
the paper-setter (or other senior person) acting as th e Head
Examiner. When more than one examiner evaluate the
answer-scripts relating to a subject, the subjectivity of the
3 (2007) 3 SCC 720
4 (2013) 12 SCC 489
5 (2015) 11 SCC 395
6 (2017) 11 SCC 456
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
respective examiner will creep into the marks awarded by
him to the answer-scripts allotted to him for valuation. Each
examiner will apply his own yardstick to assess the answer-
scripts. Inevitably therefore, even when experience d
examiners receive equal batches of answer scripts, t here
is difference in average marks and the range of mar ks
awarded, thereby affecting the merit of individual
candidates. This apart, there is ‘Hawk-Dove’ effect. Some
examiners are liberal in valuation and tend to award more
marks. Some examiners are strict and tend to give l ess
marks. Some may be moderate and balanced in awarding
marks. Even among those who are liberal or those wh o
are strict, there may be variance in the degree of str ictness
or liberality. This means that if the same answer-script is
given to different examiners, there is all likeliho od of
different marks being assigned. If a very well writ ten
answer-script goes to a strict examiner and a medio cre
answer-script goes to a liberal examiner, the medio cre
answer-script may be awarded more marks than the
excellent answer-script. In other words, there is ‘re duced
valuation’ by a strict examiner and ‘enhanced valuation’
by a liberal examiner. This is known as ‘examiner
variability’ or ‘Hawk-Dove effect’. Therefore, there is a
need to evolve a procedure to ensure uniformity inter s e
the Examiners so that the effect of ‘examiner subjecti vity’
or ‘examiner variability’ is minimised. The procedu re
adopted to reduce examiner subjectivity or variabilit y is
known as moderation . The classic method of moderation
is as follows:
(i) The paper-setter of the subject normally acts as the Head
Examiner for the subject. He is selected from amongst senior
academicians/scholars/senior civil servants/Judges. Where
the case of a large number of candidates, more than o ne
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.
59
They discuss thoroughly the question paper, the pos sible
answers and the weightage to be given to various aspects
of the answers. They also carry out a sample valuation in
the light of their discussions. The sample valuatio n of
scripts by each of them is reviewed by the Head Examiner
and variations in assigning marks are further discus sed.
After such discussions, a consensus is arrived at in reg ard
to the norms of valuation to be adopted. On that basis, the
examiners are required to complete the valuation of answer
scripts. But this by itself does not bring about uniformity
of assessment inter se the examiners. In spite of the norms
agreed, many examiners tend to deviate from the expected
or agreed norms, as their caution is overtaken by t heir
propensity for strictness or liberality or eroticis m or
carelessness during the course of valuation. Theref ore,
certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the
Head Examiner conducts a random sample survey of the
corrected answer scripts to verify whether the norm s
evolved in the meetings of examiner have actually b een
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 from the batches
of answer scripts valued by each examiner. The top-l evel
answer books of each examiner are revalued by the Head
Examiner who carries out such corrections or alterati ons
in the award of marks as he, in his judgment, consi ders
best, to achieve uniformity. (For this purpose, if necessary
certain statistics like distribution of candidates in var ious
marks ranges, the average percentage of marks, the highe st
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 adop ted
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
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
marking. In regard to the top level answer books revalued
by the Head Examiner, his award of marks is accepted as
final. As regards the other answer books below the top
level, to achieve maximum measure of uniformity inter s e
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 i t
is not feasible to have any standard moderation, the answer
scripts valued by such examiner are revalued either by the
Head Examiner or any other Examiner who is found to
have followed the agreed norms.
(vi) Where the number of candidates is very large and the
examiners are numerous, it may be difficult for one Head
Examiner to assess the work of all the Examiners. In such
a situation, one more level of Examiners is introduced. For
every ten or twenty examiners, there will be a Head
Examiner who checks the random samples as above. The
work of the Head Examiners, in turn, is checked by a Chief
Examiner to ensure proper results.
The above procedure of ‘moderation’ would bring in
considerable uniformity and consistency.
It should be noted that absolute uniformity or consistency
in valuation is impossible to achieve where there are several
examiners and the effort is only to achieve maximum
uniformity .”
[Emphasis applied]
13.2 The guidelines laid down in Sanjay Singh (supra) have been
followed in the other three cases cited on behalf of the petitioners
viz. PrashantRamesh Chakrawar (supra), SujashaMukherji
(supra) and CPIL (supra).
14. In the instant case, Justice Sikri critically examined the selection
process as well as the evaluation method and it is explicit from his report
that the procedure of evaluation was ‘uniform’. We are of the view that
evaluation done by multiple evaluators i.e. one Evaluator examining and
marking one question in all the mark-sheets, ensures uniformit y and
61
prevents chance grading. Every candidate’s answers are marke d on
same parameters by the same examiner. There can possibly be no other
better method to ensure uniformity in evaluation. The petitioners have
stated that as per the information received via RTI no model ‘answer
key’ was present. It gives more credance to the afore-stated method of
evaluation as no model ‘answer key’ ought to be devised for the Main
Exam, the purpose whereof is not to just assess the k nowledge of
candidates but also to evaluate their analytical ability. In the present
case, there was no Examiner Variability, therefore, Justice Sikri has very
aptly remarked that, “ this was well intended move to attain uniformity
in evaluation ”. This method ensures equal level play field for a ll
candidates. The only setback was lack of holistic view and lack of realistic
expectations in the examiner’s mind, for which there are adequate
remedies as discussed in the later part of this order.
15. The marking criteria and evaluation method was strict but it
was so for everyone. This was may be for the reason that one Evaluator
checked one answer in each script and in this manner the ent ire lot of
scripts were marked. The Evaluators failed to keep a pragma tic view
that source of recruitment was likely to be the same in a fresh attempt
also and that candidates had only 8.5 minutes to answer each question
and time constraint did not allow them to give their best of performance.
Even those candidates who covered all aspects briefly were not awarded
proper marks. Unlike the hypothetical illustration given in Sanjay Singh’s
case (supra), it was not a case where some candidates we re subjected
to strict marking and others had an advantage of lenient marking, so as
to draw an inference that the evaluation method was discriminatory or
arbitrary.
16. It has been found as a matter of fact that the officials and
officers of the High Court ensured adequate security measures such as
keeping the answer scripts in iron boxes under round-the-clock security
and CCTV cameras. Hence, it is just and fair to hol d that no
discriminatory or malafide practice was undertaken while conducting
the exam or its following processes.
Re: Issue II
17. Considering that the marking was strict but not discriminatory,
the remedy of moderation of marks, in order to remove the va riation
caused by multiple examiners and dearth of time, is the only effective,
equitable and efficasious solution. The petitioners have stated and rightly
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
so that as per the RTI, there are no rules governing grace marks. They
have suggested that any appropriate scientific technique like scaling, or
moderation can be adopted in this case, as is done by Union P ublic
Service Commission (UPSC) for administrative appointments and UP
Public Service Commission (UPPSC) for judicial recruitments.
18. This Court in Sanjay Singh (supra) considered the suitability
of scaling method in depth but declined to approve the same for Judicial
Examinations observing as follows:
“24. In the Judicial Service Examination, the candidates were
required to take the examination in respect of all the five
subjects and the candidates did not have any option in regar d
to the subjects. In such a situation, moderation appears t o be
an ideal solution. But there are examinations which have a
competitive situation where candidates have the opt ion of
selecting one or few among a variety of heterogenous subjec ts
and the number of students taking different options also vary
and it becomes necessary to prepare a common merit li st in
respect of such candidates. Let us assume that some
candidates take Mathematics as an optional subject and some
take English as the optional subject. It is well recognise d that
marks of 70 out of 100 in Mathematics do not mean the same
thing as 70 out of 100 in English. In English 70 out of 100
may indicate an outstanding student whereas in Mathematics,
70 out of 100 may merely indicate an average student. Some
optional subjects may be very easy, when compared to others,
resulting in wide disparity in the marks secured by equally
capable students. In such a situation, candidates wh o have
opted for the easier subjects may steal an advantag e over
those who opted for difficult subjects. There is an other
possibility. The paper-setters in regard to some op tional
subjects may set questions which are comparatively easier t o
answer when compared to some paper-setters in other subjec ts
who set tougher questions which are difficult to answer. This
may happen when for example, in Civil Service Examination,
where Physics and Chemistry are optional papers, Examine r
‘A’ sets a paper in Physics appropriate to degree le vel and
Examiner ‘B’ sets a paper in Chemistry appropriate for
matriculate level. In view of these peculiarities, there is a need
63
to bring the assessment or valuation to a common scal e so
that the inter se merit of candidates who have opte d for
different subjects, can be ascertained. The moderation
procedure referred to in the earlier para will solve only the
problem of examiner variability, where the examiner s are
many, but valuation of answer-scripts is in respect of a single
subject. Moderation is no answer where the problem is to find
inter se merit across several subjects, that is, where c andidates
take examination in different subjects. To solve the problem
of inter se merit across different subjects, statis tical experts
have evolved a method known as scaling, that is creation of
scaled score.”
[Emphasis added]
19. This Court thus considered the viability of sca ling and
moderation for Judicial Services Examinations and held that use of Scaling
is appropriate only when there is differentiation amongst subjects opted
by candidates. This does not apply in the cases where su bjects are
uniform. Further, moderation is a more viable technique so as to exclude
the effect of examiner variability. In Sanjay Singh case (supra), this
Court observed that, “there is “reduced valuation” by a strict
examiner and “enhanced valuation” by a liberal examiner. Thi s is
known as “examiner variability” or “hawk-dove effec t” …
[P]rocedure of moderation would bring in considerable un iformity
and consistency. It should be noted that absolute u niformity or
consistency in valuation is impossible to achieve wh ere there are
several examiners and the effort is only to achieve maximum
uniformity.” (para 23) As already discussed, there was no examiner
variability in present case but marking was strict which is why we are of
the view that the option of moderation deserves to be considere d and
applied.
20. We may also notice that moderation can be by the addition of
marks (in case of strict marking) and/or deduction of marks (in case of
lenient marking). In Taniya Malik vs. The Registrar General of Delhi
High Court 7, 100 posts were advertised and only 64 candidates could
qualify the Main Exam for appearing in the Viva Voce. While considering
the challenge to examination process, this Court held that moderation
cannot be applied for the reason that:
7 (2018) 14 SCC 129
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
“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 num ber 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. The re is
difference in average marks and range of marks awarded. There
is a ‘hawk-dove’ effect. Some examiners are liberal and they
award more marks; some examiners are strict and they give fewer
marks, the same may be moderated. There may be variance i n
degree of strictness and liberality. It is in order to r emove the
subjectivity or variability, that the provision of moderat ion is
adopted. It is not the situation in the instant case, hence, the decision
in Sanjay Singh (supra) rather than buttressing negates t he plea
of moderation urged on behalf of the Petitioners.”
21. Taniya Malik’s case (supra) is distinguishable as it has been
found as a matter of fact in the instant case that the strict marking has
caused severe prejudice to the candidates and only 0.702% of th em
could qualify as against 107 vacancies. The candidates have been suffering
for last five years. It is, therefore, inevitable to do complete justice and
invoke the powers under Article 142 of the Constitution and consequently
award grace marks to the candidates so that more candidate s, who are
otherwise no less meritorious, get an opportunity to appear for the viva-
voce. The question is how many grace marks should be awarded and
what should be the criteria followed.
22. Justice Sikri in his concise but scholarly authored report has
suggested three alternatives for awarding of grace marks; First
Alternative is awarding 20 marks in Civil Law-I; Second Alternative is
awarding 20 marks in Civil Law-I and 10 marks in Civil L aw-II; and
Third Alternative is awarding 35 marks in aggregate. The Petitioners, on
the other hand, have urged for awarding 50 grace marks keepi ng in
view the fact that more candidates need to qualify for 107 vac ancies.
After going through the report of Justice Sikri, in this regards, we deem
it appropriate to adopt Alternative II of the Report, since the marking in
Civil Law-I and Civil Law-II both was strict. Marking of Civil Law-II
was only marginally strict. Equity can thus be well balanced by awarding
10 marks to every candidate in Civil Law-II paper and 20 marks in Civil
Law-I. The prayer of the petitioners for addition of 50 grace marks is
65
not found feasible, for the moderation should also look reasonable. We
may hasten to add that it is not compulsory for the High Court to fill all
vacant posts, even if suitable candidates are not available.
The petitioners have failed to assign any well founded reason for
seeking moderation of 50 grace marks, only on the apprehension th at
even the candidates who secured good marks in written exami nations
were given very low marks in viva-voce and the Committee ha s been
awarding a meagre 8 to 18 marks, and hence they too will not be able to
meet the eligibility criteria of minimum 50% marks.
23. Firstly, we may very briefly emphasise the need of viva-voce
as an integral part of selection process for certain posts. This Court in
Lila Dhar v. State of Rajasthan 8, observed that
“6. … [T]he written examination assesses the man’s intellect and
the interview test the man himself and “the twain shall meet” for
a proper selection.... [I]n the case of services to which recruitment
has necessarily to be made from persons of mature personality ,
interview test may be the only way, subject to basic and essential
academic and professional requirements being satisfied...”
The viva-voce and Written Examination (Main Exam), thus, both
have their own importance in a selection process and i t is for the
interviewing panel to decide how many marks be awarded to a candidate
keeping in view his/her performance in interview. Se condly, the
composition of Selection Committee is the sole prerogative of Chief
Justice of the High Court and this Court need not venture into the issue
which pertains to exercise of administrative power (s) of the Chief
Justice.
Re: Issue III
24. The alternative prayer of the petitioners for re-evaluation by
an Independent Expert Committee is not worth acceptance. Firstly, for
the reason that these 107 posts are already lying vacant for a considerable
long period and the re-evaluation would further delay it. Secondly, Justice
Sikri has thoroughly examined the fact situation before recommending
the award of grace marks. Thirdly, there is no provision for re-evaluation
in the Recruitment Rules and any such direction would run counter to
8 (1981) 4 SCC 159
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH
the mandate of this Court in H.P. Public Service Commission v. Mukesh
Thakur 9, laying down that in the absence of any provision under the
statute or statutory rules/regulations, the Courts should not g enerally
direct re-evaluation.
25. The above-cited view has been reiterated by this Court in
Pramod Kumar Srivastava v. Bihar Public Service Commission 10
observing as under:
“7. … Under the relevant rules of the Commission, there is no
provision wherein a candidate may be entitled to ask for revaluation
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 totalling of m arks 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 of any provision for revaluation
of answer books in the relevant rules, no candidate in an
examination has got any right whatsoever to claim or ask for
revaluation of his marks .
[Emphasis added] ”
26. The Petitioners have relied on the decision in Centre for Public
Interest Litigation vs Registrar-General High Court o f Delhi 11 to
substantiate their plea for re-valuation of answer scripts by an Independent
Expert Committee. However, in that case too it was held “ if the suitable
candidates are not found, the employer is not obliged to fill up the
posts .” The directions for revaluation were given only as a special case.
Re: Issue IV
27. As regards the petitioners’ plea that marks of the Main Exam
should be disclosed before conducting viva-voce, we are of the considered
opinion that such a practice may not insulate the desired transparency,
rather will invite criticism of likelihood of bias or favourtism. The broad
principles to be laid down in this regard must be viewed keeping in view
the selections for various categories of posts by differe nt Selecting
9 (2010) 6 SCC 759
10 (2004) 6 SCC 714
11 (2017) 11 SCC 456
67
Authorities, for such a self-evolved criteria cannot be restrocted to Judicial
Services only. If the Members of the Interviewing Boards are already
aware of the marks of a candidate secured in the Written Examination,
they can individually or jointly tilt the final result in favour or against
such candidate. The suggested recourse, thus, is likely to form b ias
affecting the impartial evaluation of a candidate in viva- voce. The
acceptance of the plea of the petitioners in this regard w ill also run
contrary to the authoritative pronouncement of this Court in Ashok Kumar
Yadav and Others v. State of Haryana 12 . As the written examination
assesses knowledge and intellectual abilities of a candidate, the interview
is aimed at assessing their overall intellectual and personal qualities which
are imperative to hold a judicial post. Any measure which fosters bias in
the minds of the interviewers, therefore, must be done away with.
28. For the reasons stated above, we allow these Writ Petitions in
part with the following directions:-
(i) The Punjab and Haryana High Court through its Registrar
General is directed to award 20 grace marks in Civil Law-I
paper and 10 grace marks in Civil Law-II paper to all the
candidates of 2019 Examination and prepare fresh results of
the Main (Written) Examination of Civil Judge (Junior Division)
within two weeks and complete the selection process within
four weeks thereafter .
(ii) The entire selection process shall be completed in all respects
before 15 th February, 2020.
(iii) The left out vacant posts along with vacancies which ha ve
occurred meanwhile and those anticipated within next six
months, be advertised as early as possible and be filled i n
accordance with the timeline prescribed by this Court in Malik
Mazhar Sultan case (supra).
29. All pending applications, if any, are disposed of in terms of the
aforesaid order.
Nidhi Jain Writ Petitions partly allowed.
12 (1985) 4 SCC 417
PRANAV VERMA v. THE REGISTRAR GENERAL OF THE HIGH
COURT OF PUNJAB AND HARYANA AT CHANDIGARH