State of Uttar Pradesh vs Atul Kumar Dwivedi

State of Uttar Pradesh vs Atul Kumar Dwivedi

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 228 OF 2022
(@ Special Leave Petition (Civil) No.29972 of 2019)
STATE OF UTTAR PRADESH & ORS. …APPELLANTS
VERSUS
ATUL KUMAR DWIVEDI & ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO(S). 229 OF 2022
(@ Special Leave Petition (Civil) No.30456 of 2019)
WITH
CIVIL APPEAL NO(S). 230 OF 2022
(@ Special Leave Petition (Civil) No.30607 of 2019)
WITH
CIVIL APPEAL NO(S). 231 OF 2022
(@ Special Leave Petition (Civil) No.30552 of 2019)
WITH
CIVIL APPEAL NO(S). 232 OF 2022
(@ Special Leave Petition (Civil) No.3157 of 2020)
WITH
CIVIL APPEAL NO(S). 233 OF 2022
(@ Special Leave Petition (Civil) No.322 of 2022)
(@D.No.13480 of 2020)
 2
WITH
CIVIL APPEAL NO(S). 234 OF 2022
(@ Special Leave Petition (Civil) No.323 of 2022)
 (@ D.No.14425 of 2020)
AND WITH
CIVIL APPEAL NO(S).235 OF 2022
(@ Special Leave Petition (Civil) No.324 of 2022)
 (@ D.No.23718 of 2020)
J U D G M E N T
Uday Umesh Lalit, J.
Leave granted.
1. These appeals arise out of the final judgment and order dated 11.09.2019
passed by the High Court1
. 2. A notification was published by the State Government inviting online
application forms from male candidates for filling up 2400 posts of Sub-Inspector
of Police, 210 posts of Platoon Commander (PAC2) and 97 posts of Fire Officer
(Grade-II) in Uttar Pradesh Police. The procedure for recruitment contemplated
Online Written Examination, Physical Standard Test and Physical Fitness Test
1 High Court of Judicature at Allahabad in Writ Application No.23733 of 2018 and all other connected
matters.
2
 Provincial Armed Constabulary.
 3
whereafter the final list of selected candidates would be published. The relevant
portion of the notification dealing with online written examination was as under:
“4. Procedure of Recruitment
This recruitment is done under Uttar Pradesh Sub Inspector and Inspector
(Police) Service (1st Amendment) Rulebook – 2015.
4.1 Online Written Examination
All the applicants whose application have been found to be correct and
accepted will be expected to take up a 400 marks online
written examination. This examination will contain question based on 4
subjects listed below and will be based on multiple choice type questions.
Sr. No. Subject Maximum Marks
1 General Hindi 100 Marks
2 Law/ Constitution/ General
Knowledge
100 Marks
3 Maths & Mental Ability Exam 100 Marks
4 Mental Interest Examination/
Brainstorming Examination/
Logic-based Examination
100 Marks
Applicants who will fail to score a minimum of 50 percent marks in the
test will not be eligible for recruitment. Depending on the number of
applicants the written examination will be carried out on one day and one
session, or on one day multiple sessions or on multiple days multiple
sessions. For each session the question paper will be different. The course
for the online examination is in Annexure-1. If after completion of online
examination and being invited by the board the applicant makes any
objection then he has to pay a pre-determined charge. If the objection has
been found to be true then the amount will be refunded.”
2.1 Similar notification was published on the same date with respect to 600
posts of Sub-Inspector (Nagrik Police) for female candidates. The recruitment 
 4
procedure was dealt with in Para 4 of the notification and the portion dealing with
“Online Written Examination” was identical to Para 4.1 quoted hereinabove.
3. In response to these advertisements, 6,30,926 applicants submitted their
online application forms. Considering the large number of candidates who had
offered their candidature, a notification was published on 28.6.2017, the translated
portion of which was as under: “NOTICE/ RELEASE
No.PRPB-Anu-6-P-18/2016 Dated: June 28, 2017
1. For the Males for the Direct Recruitment 2016 on the posts of the SubInspector (Nagrik Police), Platoon Commander PAC and Fire Brigade
Second Officers and for filling up 2400 posts for the Sub-Inspector (Nagrik
Police), 210 posts for the Platoon Commander PAC and 97 posts for the
Fire Brigade Second Officer from the Males candidates online application
was invited.
2. Similarly for the Females for the post of Sub-Inspector (Nagrik Police)
under the Direct Recruitment – 2016 in the Uttar Pradesh Police for the 600
posts for filing up the posts for the Sub-Inspector (Nagrik Police) from the
Females candidates online application was invited.
3. For the Males on the posts of Sub-Inspector (Nagrik Police), Platoon
Commander, PAC and Fire Brigade Second Officers under the Direct
Recruitment-2016 total 5,42,124 candidates and for the Females for the
filling up the post for the Sub-Inspector (Nagrik Police) under the Direct
Recruitment-2016, 88,802 viz. total 6,30,926 candidates had applied.
4. On the posts of Sub-Inspector (Nagrik Police), Platoon Commander PAC
and Fire Brigade Second Officer in the direct online written examination on
the basis of the seniority of the received marks this examination is being
run/ organized. In accordance with the number of the candidates the online
written examination in more than one date in the different sitting along with
the different questions papers the need has come for getting organized the
same. The question paper of every sitting will be different in which there
may not be possibility of equality and keeping in view the same in the
different questions paper by the candidates the Normalisation of the
received marks “MAH-MBA/MMS CET 2015” by the used Standardized
Equi-percentile method it will be done.
 5
5. The construction of the question paper of the online written examination
will be as under:-
No. Subject Number of
questions
Maximum
Marks
Time
1 General Hindi 40 100 2.00 Hours
Composite
2 Original Law Time
Constitution
24 100
General
Knowledge
16
3 The Statistics
and Mental
Eligibility
Examination
40 100
4 Mental Interest
Examination/
Wise
Availability
Examination/
Logical
Examination
40 100
Every Question =
2.50 marks
Total
Questions
160
Total
Marks
400
2.00 Hours
6. In the question paper total 160 questions will be there. For every question
there will be four alternative answers, in which the candidates will select
one out of four alternative answers which the candidate feels it correct. For
every question select only one answer and fill up online answer.
7. For every correct answer 2.50 marks is fixed or for any incorrect answer no
negative marking will be done there.
8. In any subject in case of cancelling of any question the valuation procedure
in the Writ Petition No.2669/2009 (MB) – Pawan Kumar Agrahari vs. Uttar
Pradesh Public Service Commission by the Hon’ble High Court it will be
done in accordance with the established law and order.
9. In every subject in receiving 50% marks the candidate who failed to do so
for the recruitment procedure he will not be eligible.
 6
10. In the question paper leaving the general Hindi subject the question paper of
other subjects there will be in Hindi and English Language. Any question in
other native language on the login screen it will be selected it may be seen.
In case of any doubts the English translation will be acceptable……”
4. Paragraph 4 of the notification dated 28.06.2017 thus stated that
normalization of marks received, would be done as per “Standardized Equipercentile method” used in MAH-MBA/MMS CET 2015.
It may therefore be relevant at this stage to set out relevant
instructions pertaining to MAH-MBA/MMS CET 2015. The instructions
issued by the Directorate of Technical Education, Maharashtra State, Mumbai
for holding the online Common Entrance Test were:- “Instructions for Registration for MAH-MBA/MMS-CET 2015 by
candidate:
1. MAH-MBA/MMS-CET 2015 shall be conducted only in the ONLINE
mode in multiple sessions. Competent Authority, using standardized
equi-percentile method, will be equating scores across sessions. … … …”
The information brochure dealt with issue of arriving at the equated
score as under:
“(i) Number of questions answered correctly by a candidate in each
objective test is considered for arriving at the Corrected Score.
(ii) The Corrected Scores so obtained by a candidate are made equivalent
to take care of the minor difference in difficulty level, if any, in each 
 7
of the objective test held in different sessions to arrive at the Equated
Scores.*
*Scores obtained by candidates on any test are equated to the base
form by considering the distribution of scores of all the forms.
(iii) testwise scores and scores on total is reported with decimal points upto
two digits.
Please note that the types of questions shown here are only illustrative
and not exhaustive. In the actual examination you will find questions
of a higher difficulty level on some or all of these types and also
questions on the types not mentioned here.”
5. Written examination was held between 12th to 23rd December, 2017 in 29
different sittings. In other words, 29 different batches of students appeared for the
written examination where the question papers were different. After the
completion of written examination, 11741 students were called for further stages to
participate in “Physical Standards Test” and “Physical Efficiency Test”. This
number comprised of 5461 candidates who had secured more than 50% actual
marks in the written examination which shall hereafter be referred to as “raw
marks”; while 5713 candidates had secured more than 50% marks after the process
of normalization as set out in para 4 of the Notification dated 28.06.2017 was
adopted, which marks shall hereafter be referred to as “normalized score”.
 8
All these 11741 candidates were allowed to take part in the further stages of
the process of selection.
6. In October, 2018, Writ Petition No.23733 of 2018 was filed in the High
Court by certain candidates who had secured more than 50% raw marks submitting
inter alia that the Board3 had wrongly applied the normalization process by issuing
call letters to all those candidates who had not obtained more than 50% raw marks
but had secured more than 50% normalized score. It was submitted that the
candidates who had not secured more than 50% raw marks but could cross 50%
only with the help of normalized score could not be included in the list of qualified
candidates and were required to be excluded from the process of selection.
In the affidavit in reply filed by the Member Secretary of the Board3 to said
writ petition, it was stated :-
“10. That in the present selection all the candidates who has obtained
50% marks either in the category of raw marks or after the process of
normalization in each of the subject such candidates has been declared
successful for next stage of recruitment such as document verification
and physical standard test and the aforesaid process of normalization
is being adopted by the Board in accordance with law and as the
present writ petition as framed is devoid of any merits and the grounds
taken therein have no force and as such the present writ petition is
liable to be dismissed.”
3
 Uttar Pradesh Police Recruitment and Promotion Board, Lucknow.
 9
7. On 28.02.2019, the final result of the selection process was declared which
comprised of eight lists as under:-
“(i) List 1 – List of 2181 selected candidates for the post of Sub
Inspector (Civil Police), Platoon Commander PAC and Fireman
Second Officer.
(ii) List 2 – A joint merit list of 2181 selected candidates for Sub
Inspector (Police), Platoon Commander PAC and Fireman Second
Officer.
(iii) List 3 - A joint merit list of 2181 selected candidates for Sub
Inspector (Civil Police), Platoon Commander PAC and Fireman – Second Officer categories.
(iv) List 4 – A list of 1943 candidates selected for Sub Inspector (Civil
Police).
(v) List 5 – 162 candidates selected for Platoon Commander PAC.
(vi) List 6 – List of 76 officers selected for Fireman Second Officer.
(vii) List 7 – List of non-selected candidates.
(viii) List 8 – List of candidates declared unsuccessful in the written
examination.”
8. Thereafter, an application seeking amendment of Writ Petition No.23733 of
2018 was filed and the following prayer was sought to be added: -
“(iii-a) issue a writ, order or direction in the nature of certiorari and
quash the impugned result dated 28.02.2019 (Annexure-8) regarding
List-B showing name of Petitioners Nos.1, 2, 4, 12, 21, 26, 41, 61, 62,
63, 70, 80, 81, 82, 84, 90, 94, 97, 98 and 99 as well as other
candidates failed in written exam.”
The aforesaid amendment application was allowed by a Single Judge of the
High Court vide Order dated 06.03.2019.
 9. Some of the unsuccessful candidates had also filed Writ Petition SS No.6540
of 2019 (Manish Kumar Yadav and 49 Ors. v. State of U.P. Thru Addl. Chief Secy.
Home Lucknow and Ors.) before the Lucknow Bench of the High Court. 
 10
In the reply dated 23.03.2019, filed by the Principal Secretary, Department
of Home, Government of Uttar Pradesh to said Writ Petition, it was submitted:-
“It is further submitted that the written examination has been
organized by the U.P. Public Service Commission by different papers
and same has been evaluated by the different examiners and as such
scaling system has been adopted by the U.P. Public Service
Commission. Hence the aforesaid judgment cited by the petitioners is
not applicable.
It is also relevant to mention here that selection in question has
been conducted online but in the aforesaid online examination there is
no difference in the subject, however, considering the huge number of
candidates online examination was held on different dates and
different shifts, as such different set of papers with varying levels of
difficulty have been used. It is further submitted that for normalization
of the Marks of the candidates who appeared in different papers,
Standardized Equi-percentile Method has been applied. Where the
Examination were held in different dates, different shifts and different
set of papers. The Normalization process has been adopted in different
National Examination, therefore, the Normalization process adopted
by board is legal and justified.”
10. In said Writ Petition No.6540 of 2019 and other connected matters, a Single
Judge of the High Court passed an interim order on 30.03.2019, the operative
portion of which was:-
“As an interim measure, it is provided that till the next date of listing,
no appointment letter shall be issued to the selected candidates pursuant
to the select list / result dated 28.02.2019, which is contained as
Annexure No.1 to the writ petition, however, the process of selection
which is being undertaken by the State Authorities may go on.”
11. The aforestated Order dated 30.03.2019 was challenged by some of the
selected candidates by preferring Special Appeal (Defective) No.210 of 2019 
 11
(Satyendra Kumar Singh and Ors. vs. State of U.P. Thru. Add. Chief Secy, Deptt.
of Home and Ors).
The Division Bench of the High Court considered rival submissions
advanced by the concerned candidates and the State Government and by its order
dated 27.05.2019 modified the interim directions issued by the Single Judge. The
operative portion of the order passed by the Division Bench was:-
“….After considering the rival submissions, this Court is of the
opinion that the process of recruitment, which was initiated in the year
2016 for which the final select list has been issued on 28.02.2019
could not be hampered on account of any order passed by the Court. It
is not in dispute that the introduction of the Rule of Equi-percentile
Methodology was notified by means of the notice dated 28.06.2017
i.e. prior to the date when the examination was held and none of the
writ petitioners had assailed the said Methodology. After having
appeared in the examination and upon declaration of the final select
list, it would not be appropriate for such candidates to hold the entire
recruitment process to ransom. However, without entering into the
merits of making any observations, this Court in the facts and
circumstances deem appropriate that subject to the directions given in
this special appeal, the respondent No.2 i.e. U.P. Police Recruitment
and Promotion Board may issue the appointment letters, which shall
be subject to the final outcome of the writ petition pending before the
learned Single Judge.
The appellants and other selected candidates shall give their
undertaking before the appropriate authority concerned that they shall
not claim any lien or right over the appointment and their
appointments shall be purely subject to the outcome of the writ
petitions pending before the learned Single Judge. The appellants
shall ensure that they file their counter affidavit before the next date of
listing before the learned Single Judge, who shall upon exchange of
pleadings shall consider the issue involved shall decide the writ
petitions pending before it.”
12. Consequently, selected candidates were sent for training.
 12
13. The Order dated 27.05.2019 passed by the Division Bench was challenged
by some of the candidates by preferring Special Leave Petition (Civil) No.13551 of
2019 (Manish Kumar Yadav and Ors. vs. State of Uttar Pradesh and Ors.) which
came up before the Vacation Bench of this Court on 12.06.2019 when following
order passed by this Court: -
“We do not find any cogent grounds to interfere with the order of
the Division Bench impugned. The selected candidates have given an
undertaking that they shall not claim any lien or right over the
appointments which shall be subject to the result of the writ petition.
The special leave petition is not entertained.
We, however, request the Chief Justice of the High Court to
constitute a special Division Bench to expeditiously hear the writ
petition on day-to-day basis without granting necessary adjournments
and to dispose of the writ petition as expeditiously as possible
preferably within thirty days from the date of constitution of the
Bench.
The special leave petition and pending applications are accordingly
disposed of.”
14. Thereafter, a Special Division Bench was constituted at Allahabad.
Similarly, a Special Bench was also constituted at Lucknow Bench of High Court.
The Special Division Bench constituted at Allahabad allowed Writ Petition
No.23733 of 2018 and other connected matters by its judgment and order dated
11.09.2019 which is presently under challenge.
14.1 The rival submissions advanced by the parties, were summarized by the
Special Division Bench at Allahabad as under:- 
 13
“61. Having noted the rival contentions, at length, the submissions of
the learned counsel for the petitioners, in brief can be summarized as
follows:-
(i) the Selection Board has been conferred limited power under the
Recruitment Rules only to determine the procedure of written
examination;
(ii) the Selection Board is not vested with the power and authority to
determine the procedure of selection which has been prescribed by the
rule making authority;
(iii) the eligibility condition of obtaining 50% marks by a candidate is
a condition precedent mandated under the Rules, which is not subject
to any alteration or substitution by normalized score;
(iv) normalization is a method of evaluation falling within the ambit
of written examination and not an eligibility condition, normalized
score at the best can be applied for preparing the select list in order of
merit;
(v) the Selection Board by eliminating the qualified candidates having
scored 50% marks in each subject by applying the normalized score
exceeded its power and authority vested by the Recruitment Rules;
62. In rebuttal the submissions on behalf of the respondents, can be
briefly summarized as follows:-
(i) the Selection Board is vested with the power and authority to
equalize the marks obtained by a candidate in the backdrop of written
examinations held on multiple dates/multiple shifts with different
papers;
(ii) the Selection Board has inherent power to adopt a fair and just
procedure by equalizing the marks to place all the candidates on a
level playing ground;
(iii) the Selection Board has power to equalize the eligibility marks
(50%) prescribed under the Rules in an examination held in multiple
shifts with different standard of papers;
(iv) candidates appearing in difficult papers would be in
disadvantageous position as against candidates appearing in relatively
easier question papers. The word ''marks' used in Sub-clause (b) and
(e) of Rule 15 would mean and include normalized marks.
(v) petitioners after participating in the selection process cannot turn
around to challenge the same.
63. Rival submissions fall for consideration.”
14.2The questions that arose for consideration were formulated as under: -
 14
“(i) whether the Selection Board was within its power and authority in
applying the normalized percentile score to determine the eligibility of
the candidates or in the alternative whether the Selection Board
transgressed its authority to alter/substitute the eligibility criteria (50%
marks) mandated in Sub-clause (b) of Rule 15 by normalized score to
non-suit, all such candidates from the recruitment process who
obtained 50% marks and above;
(ii) the scope of judicial review of the Standardized Equitable
Percentile Method adopted by the Selection Board.”
14.3. In paragraph 66 of its judgment, the Special Division Bench quoted Rule 15
of the Recruitment Rules4: “"Procedure for Direct Recruitment to the post of Sub-Inspector:-
15. (a) Application form and call letter:-
A candidate shall fill only one application Form. The Board will
accept only online applications. The application of candidates, who
fill more than one form, may be rejected by the Board. The Head of
the Department, in consultation with the Board, shall fix an
application fee for any recruitment. Detailed procedure of filling the
Application Form and issuance of call letter shall be determined by
the Board and will be displayed on its own website.
The Government may change the number of vacancies for any
recruitment at any time before the first examination and may also
cancel any recruitment at any time or stage of recruitment without
assigning any reason therefor.
(b) Written examination
Candidates whose applications are found correct, shall be required
to appear for written test of 400 marks. In this written examination,
the Board will keep one objective type question paper of the following
subjects:-
Subject Maximum Marks
1. General Hindi 100 marks
(objective type)
4
 The U.P. Sub Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2015 framed in
exercise of powers under the Police Act, 1861. 
 15
2. Basic Law /Constitution/
General Knowledge
100 marks
(objective type)
3. Numerical and Mental
Ability Test
100 marks
(objective type)
4. Mental Aptitude Test/ I.Q.
Test/ Reasoning
100 marks
(objective type)
Candidates failing to obtain 50% marks in each of the above
subjects shall not be eligible for recruitment. The detailed syllabus
for the examination will be decided by Board and will be displayed on
its own website. The Board will decide at its own level to conduct
written examination on one date in a single shift or in more than one
shift or on more than one shift or on more than one date in different
shifts with different question paper. Detailed procedure for written
examination shall be determined by the Board and will be
displayed on its own website.
(c) Scrutiny of documents and physical standard test:-
Candidates found successful in written examination under
clause (b) shall be required to appear in Scrutiny of Documents and
physical Standard Test. Keeping in view the total number of
vacancies, the Board shall decide at its own level, the number of
candidates on the basis of merit to be called for this test. Physical
Standards for candidates are as follows:-
1. Minimum Physical Standards for male candidates are as
follows:-
(a) Height:-
xxxxxx
(b) Chest:-
xxxxxx
2. Minimum Physical Standards for female candidates are as
follows:-
(a) Height:-
xxxxxx
 16
(b) Weight:-
xxxxxx
For conducting this examination, a Committee will be constituted by
the Board in which a Deputy Collector nominated by the District
Magistrate will be the Chairman and the Deputy Superintendent of
Police nominated by the District Superintendent of Police will be the
member, the other members of the committee shall be nominated by the
District Magistrate or the Superintendent of Police if requested by the
Selection Board.
Detailed procedure for this examination shall be determined by the
Board and will be displayed on its own website.
xxx xxx xxx xxx
(d) Physical Efficiency test:-
Candidates found successful in Scrutiny of Documents and
Physical Standard Test as per clause (c) will be required to appear in
Physical Efficiency Test, which will be of qualifying nature……
Detailed procedure for Physical Efficiency Test shall be determined by
Board and will be displayed on its own website. For conducting this
exam a committee will be constituted by Board……..
(e) Selection and final merit list:-
From amongst the candidates found successful in Physical
Efficiency Test under clause (d), on the basis of marks obtained by each
candidate in written examination under clause (b). Board shall prepare,
as per the vacancies, a select list of each category of candidates, as per
order of merit keeping in view reservation policy and send it with
recommendation to the Head of the Department subject to Medical
test/character verification. No waiting list shall be prepared by the
Board. List of all candidates with marks obtained by each candidate
shall be uploaded on its website by the Board. The Head of the
Department shall after his approval forward the list sent by the Board to
the Appointing Authority for further action.
Note:- xxxxxxxxx
(f) Medical Test:-
The candidates whose names are in the select list as per clause (e),
will be required to appear for Medical Examination by the Appointing
Authority. For conducting the medical examination, the Chief Medical
Officer of the concerned district shall constitute a medical Board, which 
 17
will have 03 doctors, who will conduct Medical Examination as per
"Police Recruitment Medical Examination Forms" as prescribed and
codified by the Head of Department in consultation with the Director
General of Medical Health. Any candidate not satisfied by his Medical
Examination, may file an appeal on the day of examination itself.
xxxxxxxx The candidates found unsuccessful in Medical Examination
shall be declared unfit by the Appointing Authority and such vacancies
shall be carried forward for next selection".
(Emphasis supplied)
14.4 The Special Division Bench was not satisfied with the translation of the
relevant parts of the notification dated 28.06.2017 and as such, it translated
paragraphs 4 and 9 of the notification as under:-
“4. The direct recruitment to the posts of Sub Inspector Civil Police,
Platoon Commander, PAC and Fire Officer II is being conducted on
the basis of merit in terms of the marks obtained by the candidates
successful in the online written examination. In view of the number of
candidates, need has arisen for conducting online written examination
on more than one date in different shifts with different sets of papers.
Question papers of the different shifts shall be different, and keeping
in view the possibility of them being not similar, the normalization of
the marks obtained by the candidates in different question papers shall
be done by the “MAH-MBA/MMS CET 2015” Standardized Equipercentile Method.
xxx xxx xxx
9. The candidates who fail to obtain 50 percent marks in each subject
shall not be eligible for the recruitment.”
14.5 The submissions advanced by the learned counsel for the writ petitioners
were summed up as under:-
“14. To summarise the arguments of the learned counsels for
both sides, Sri R.K. Ojha, learned Senior Advocate appearing for the
petitioners submits that the process of normalization adopted by the
respondents for preparation of the eligibility list is not contemplated in
the Recruitment Rules. Even the Selection Board while issuing 
 18
notification dated 17.06.2016 in Clause 4.1 and 4.2 thereunder
provided that selection would be made on the criteria of 50% marks
being the qualifying marks in the written examination and select list
calling the candidates for participation in the process of scrutiny of
documents and Physical Standard test would be drawn on the said
criteria.
15. In the notification dated 28.06.2017 (which was issued in
Hindi), it was categorically provided that the candidates who did not
attain 50% marks would be disqualified and would not be treated as
eligible candidates. In paragraph no.’4’ of the said notification it was
provided that normalization of the total marks obtained by the
candidates taking the question paper as one unit would be made by
applying Equi Percentile method for the purpose of drawing inter-se
merit of the selected candidates. The Selection Board had committed
illegality in drawing the final merit list by exclusion of all those
candidates who did not attain 50% normalized marks (by applying the
Equi-percentile Method) in each subject though they attained 50%
actual/raw marks in each four subjects of the question paper for
written examination and, thus, were qualified to be included in the list
of eligible candidates for participation in further stage of “Physical
test and scrutiny of document” as per the Rule 15(c) of the
Recruitment Rules. The criteria of selection had been changed during
the course of the selection process which was not permissible in view
of the settled legal proposition that rules of the game cannot be
changed during mid of the game.”
14.6 The submissions on behalf of the State were:-
“43. Sri Manish Goyal, learned Additional Advocate General on
behalf of the State-respondents and the Selection Board, in reply to the
arguments advanced by the learned counsels for the petitioners and to
justify the process of normalization adopted by the Selection Board
made the following submissions:-
44. The first submission is that the normalization is an universally
approved standard method applicable in case of variable difficulty
level of question papers and, therefore, application thereof was well
within power of evaluation of the Selection Board. Placing the
affidavit dated 12.04.2019 filed on behalf of the respondent Nos.2 &
3, it is contended that normalized marks “Y” were derived after
applying the Equi Percentile formula on fraction of 100 and as such
denote percentage and not percentile. The said formula was worked
out by the agency which had conducted the examination and prepared
result for the Selection Board. The experts/statistician of the company 
 19
had applied Equi-percentile Method in coordination with and under
the instructions of the Selection Board. It is wrong to assert that
normalized marks achieved by the Equi-Percentile Method and
percentile are one and the same thing. Ultimate value of “Y” being
value out of ‘100’ is percentage marks of the candidates. The
equation of Equi Percentile formula re-written on fraction of 100 at
page no.’10’ (Annexure no.2 of the said affidavit) is noted hereunder:-
14.7 The relevant discussion and the conclusions arrived at by the Special
Division Bench were:-
“78. On a plain reading of Sub-clause (b) of Rule 15, the rule making
authority explicitly and clearly mandated that a candidate fulfilling the
educational qualification would have to take the written examination,
in the event of the candidate ‘failing to obtain 50% marks’ in each
subject would not be ‘eligible’ to participate in the subsequent stages
of recruitment. The latter part of Sub-clause (b) confers power upon
the Selection Board to determine: (i) detail syllabus for the
examination; (ii) to conduct written examination on one date in single
shift or in more than one shift or on more than one date in different
shifts with different question papers; (iii) to determine the procedure
for written examination. Sub-clause (c) of Rule 15 provides that
candidates found “successful in written examination under sub-clause
(b)” shall be required to appear in scrutiny of documents and physical
efficiency test.
79. On conjoint reading of Sub-clause (b), in particular, the first part
with sub-clause (c), it is evidently clear that the Selection Board has
not been conferred power to dilute, alter or prescribe the eligibility of
a candidate by substituting the mandated '50% marks' by the
'normalized score' to qualify the candidates for subsequent stages of
selection. The rule making authority upon prescribing the eligibility
criteria, conferred limited power upon the Selection Board to
determine the detailed procedure of written examination. The
procedure of selection was prescribed by the rule making authority 
 20
under Rule 15, however, the Selection Board was conferred limited
power to determine the procedure of written examination. In the facts
of the instant case, the Selection Board exceeded its authority and
power by applying the normalized score and not the raw marks to
determine the eligibility of the candidates while preparing the select
list. The petitioners, herein, qualified the written examination by
scoring '50% marks' in each subject, thereafter, were invited by the
Selection Board to participate in the subsequent stages of recruitment
i.e. document verification and physical efficiency test, which is of a
qualifying nature, no marks are allotted. The Selection Board,
however, eliminated the petitioners by applying the normalized score
in order to determine the eligibility qualifying marks in contradiction
to that mandated under the Rule in gross violation of Sub-clause (b) of
Rule 15. The conduct of the Selection Board tantamounts to rewriting/amending the mandatory rule, thereby, vitiating the select
list.” … … … 88. On reading Sub-clause (b) and (e) of Rule 15 the word “marks”
used therein have different connotation. The phrase ‘failing to obtain
50% marks’ employed by the rule making authority in Sub-clause (b)
prescribes the eligibility criterion which is mandatory qualification. In
other words, a candidate failing to obtain the prescribed eligibility
marks gets excluded from the recruitment process automatically.
Whereas, the phrase “marks obtained by each candidates” employed
in Subclause (e) of Rule 15, would not mean and include the marks
obtained by the candidate for determining his/her eligibility, but
would take within its fold the 'normalized score' for preparing the
select list in order of merit after equalising the marks obtained by the
candidates in Sub-clause (b). Sub-clause (b) refers to marks prescribed
by the rule for eligibility purpose, whereas, Sub-clause (e) refers to
marks/score obtained upon evaluation upon normalization of the
marks referred to in Sub-clause (b) for the purpose of making the
select list in the order of merit. Such an approach in drawing the select
list in an examination held in multiple shifts would be just and fair.
The Selection Board is within its powers in adopting a method of
evaluation of written examination papers in the backdrop of multiple
shifts/different paper exams to arrive at a process to prepare the select
list in order of merit.
103. We are also fortified in our conclusion while tracing the
evolution of the Rules pertaining to the recruitment of Sub-Inspector.
The Recruitment Rules came to be amended on 3 December 2015.
The selections have been made pursuant to the amended Rules. Sub
clause (b) of Rule 15 provides that “candidates failing to obtain 50% 
 21
marks in each of the subject shall not be eligible for recruitment”. The
same phrase was employed in Sub-clause (e) of Rule 15 that came to
be amended. In other words, eligibility criteria was not altered or
changed by rule making authority. The only change brought about by
the amendment was that the procedure for written examination was
entrusted upon the Selection Board exclusively by omitting Appendix3 which prescribed the procedure of written examination. We are
informed that the superseded Rule (Prior to enactment of Recruitment
rules) governing the appointment and selection of Sub-Inspector, viz.
“the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service
rules, 2008”, Rule 15(f) provided that the candidate ‘who fails to
obtain minimum 50% marks’ in each subject shall not be eligible for
recruitment. It is, thus, evident that the rule making authority was
fully conscious that the candidates are required to score minimum
marks (50%), failing which, they shall not be eligible for recruitment.
The eligibility criteria was retained while promulgating Recruitment
Rules. The Selection Board was not conferred the power and
jurisdiction by the rule making authority to alter or amend the
eligibility criteria. The Selection Board by the amended rules was
vested with exclusive, but limited power to determine the procedure of
the written examination, which includes evaluation of papers by
adopting method of scaling to equalize the different levels of papers in
examination held in multiple shifts and, accordingly, draw the select
list. We accordingly find merit in the contention of the petitioners that
Selection Board exceeded its authority by disqualifying the
petitioners. … … … 107. Normalisation of marks, therefore, means increasing and/or
decreasing the marks obtained by students in different timing sessions
(shifts) to a certain number. In statistics, the term normalization refers
to the scaling down of the data set such that the normalized data falls
in the range between 0 and 1. Such normalization techniques help in
comparing corresponding normalized values from two or more
different data sets in a way that it eliminates the effects of the
variation in the scale of the data sets i.e. a data set with large values
can be easily compared with a data set of smaller values. The
normalized score/percentile is obtained by applying a formula.
108. Percentiles, however, should not be confused with percentage.
The latter is used to express fractions of a whole, while percentiles are
the values below which a certain percentage of the data in a data set is
found. In practical terms, there is a significant difference between the
two. The percentage score reflects how well the student did in the
exam itself, the percentile score reflects how well he did in 
 22
comparison to other students. Percentile rank would, therefore, mean
percentage of scores that fall at or below a given score. Usually
written to the nearest whole percent and are divided into 100 equally
sized groups. The lowest score is at the first percentile and the highest
score is at the 99th percentile.
109. It is relevant to place on record that none of the aggrieved
candidates have made any allegation of mala fides or lack of bona
fides, as against the Selection Board or its members or for that matter
in the manner in which subsequent stages of selection were held by
the Committee or with regard to the computation of normalized score
arrived at by applying the Standardized Equi-Percentile method. In the
absence of challenge to the normalization method and the scores
obtained by the Selection Board in scaling the marks of the candidates
scored in written examination, we take it that the normalisation
formula and the normalized percentile score worked out by the
Selection Board is just and fair. … … … 122. On specific query, learned Additional Advocate General submits
that all the petitioners herein who obtained 50% minimum marks
(qualifying marks) were allowed to participate in the subsequent
stages of selection i.e. physical standard test, document verification
and physical efficiency test. It is, therefore, urged that the Selection
Board would not be required to undertake any fresh exercise of
selection/recruitment in preparation of the select list in order to merit.
123. Having due regard to the facts and circumstances of the case and
the provisions mandated by the Recruitment Rules, the writ petition is
allowed by passing the following orders:
i) the select list dated 28 February, 2019 is set aside and quashed;
ii) the candidates having failed to obtain 50% marks (raw marks) in
each subject are declared ineligible for recruitment/selection;
iii) the Selection Board shall prepare the select list in order of merit on
normalized score, derived by Standardized EquiPercentile Method;
iv) Selection Board to comply the order within six weeks from the
date of filing of certified copy of this order and the selected candidates
shall be sent for training.”
 23
15. The points which were noted or weighed with the Special Division Bench of
the High Court can be summed up as under:-
a. There were no allegations of mala fides or lack of bona fides as against the
Selection Board or its Members or with respect to the manner in which the
subsequent stages of selection were held or with regard to the computation of
normalization score or the normalization method and formula adopted by the
Selection Board.
b. The expression “marks” as used in Rule 15 (b) of the Recruitment Rules
must be construed as “raw marks”.
c. Rule 15 (b) dealt with eligibility condition and a candidate failing to obtain
50% “raw marks” in each of the subjects would not be eligible for recruitment.
d. Only those candidates who were successful in written examination under
clause (b) of Rule 15 that is to say who had obtained more than 50% “raw marks”
were eligible to appear in the further stages of scrutiny of documents and physical
efficiency test.
e. The expression “marks obtained by each candidate in written examination
under clause (b)” as appearing in Sub-rule (e) of Rule 15 must be understood and
construed as “normalized score”. In other words, the process of normalization 
 24
could be applied only for preparing the select list after all stages of examination
contemplated under Sub-rules (b), (c) and (d) were over.
f. The Selection Board was not competent to adopt the process of
normalization at Rule 15(b) stage and such conduct on part of the Selection Board
amounted to re-writing or amending the mandatory rule.
In the light of these conclusions, the directions passed by the Special
Division Bench required the concerned authorities to rule out the candidature of
those who had failed to obtain 50% “raw marks” in each subject and then to
prepare the select list in order of merit using “normalized score”.
16. Relying on the aforestated decision of the Special Division Bench at
Allahabad, the Special Division Bench at Lucknow disposed of all the matters
pending before it namely SS No.6540 of 2019 and connected matters (Manish
Kumar Yadav and others vs. State of Uttar Pradesh and others) by its order dated
18.10.2019. Said order of the Special Division Bench at Lucknow was challenged
in Special Leave Petition (C) Diary No.39931 of 2019 (Ajay Singh v. Manish
Kumar Yadav and 49 others). The Special Leave Petition was rejected summarily
by this Court by its order dated 18.11.2019 as under:-
“Application for permission to file Special Leave Petition is
allowed.
Heard learned counsel for the parties.
 25
The Special Leave Petition is dismissed.
 Pending applications stand disposed of.”
17. State of Uttar Pradesh and some of the candidates being aggrieved by the
judgment and order dated 11.09.2019 passed by the Special Division Bench at
Allahabad have challenged the decision by filing Special Leave Petitions from
which the instant appeals arise. In its order dated 28.02.2020, this Court directed
the State and the Board as under:
“We direct the State and the Board to file appropriate affidavits
indicating:
(a) How many candidates had secured minimum 50% of marks
before the normalization process was applied and who were also
found to be eligible in the subsequent two stages namely scrutiny of
documents and physical standard test.
(b) How many candidates were found to have secured
minimum 50% marks after normalization process was applied and
who were also found to be eligible in the subsequent two stages
namely scrutiny of documents and physical standard test.
In other words, the number of candidates who were found
eligible without resorting to normalization and after taking resort to
normalization, must be available.
(c) Out of these two lists, which are the common names who
irrespective of, whether normalization is applied or not would still be
qualified.
(d) The affidavit shall also indicate the current vacancy
position category-wise and how many seats were actually advertised
to be available in the current selection process.
Let the exercise be done within next four days and appropriate
affidavits be filed on or before 5.3.2020.
Pending further consideration, there shall be stay of proceedings
in any contempt filed in relation to the present matter.”
 26
18. Accordingly, an affidavit was filed on behalf of the State and the Board
placing on record the factual information as under:
“3. That for recruitment of Sub Inspector Civil Police and equivalent
post of direct recruitment 2016, 2400 posts of Sub Inspector Civil
Police, 210 posts of PAC Platoon Commander, 97 posts of Fire
Service Second Officer regarding Male candidates and 600 posts of
Sub Inspector Civil Police regarding female have been advertised
separately for male and female vide notification dated 17-06-2016
respectively. Against the said advertisement total 630926 online
applications (Male 542124 & Female 88802) have been received. Out
of which total 364539 candidates (Male 317828 & Female 46711)
have participated in the written examination.
4. That 9158 male candidates had secured 50% of marks in each
section/ subject before the normalization process was applied. Out of
these 9158 candidates, 7930 candidates were present/ appeared in
DV/ PST (Document Verification and Physical Standard Test-Height/
Chest) and 1181 remain absent. Out of these 7930 candidates, 7603
were qualified in DV/PST. 5723 candidates out of 7603 were
qualified in Physical Efficiency Test (Running).
In addition to above, it has to be clarified that 47 male candidates
were qualified before normalization as per instructions of Hon’ble
High Court, Allahabad, they were awarded extra marks for two wrong
questions but they could not be called for DV/ PST because they
could not qualify in normalized marks as by that time the selection
result was being prepared on the basis of only normalized marks.
Status of male candidates-SI-2016 before normalization is applied
Score
criteria
Qualified
for
DV/PST
Absent
in
DV/PST
Present in
DV/PST
Failed in
DV/PST
Qualified
in DV/PST
Failed
in PET
Qualified
in PET
Based on Raw
Scores (before
Normalization)
9158 1181 7930+47* 327 7603+47* 1721 5723
5. That 501 female candidates had secured minimum 50% of marks in
each section/ subject before the normalization process was applied.
Out of these 501 female candidates, 448 candidates were present/
appeared in DV/ PST (Document Verification and Physical Standard 
 27
Test-Height/ Weight) and 53 candidates remained absent. Out of 448
candidates, 441 were qualified in DV/ PST and 348 candidates out of
441 candidates were qualified in Physical Efficiency Test (Running).
Status of Female candidates-SI-2016 before normalization is applied
Score criteria Qualified
for
DV/PST
Absent
in
DV/PST
Present
in
DV/PST
Failed in
DV/PST
Qualified
in DV/PST
Failed
in PET
Qualified
in PET
Based on Raw
Scores (before
Normalization)
501 53 448 7 441 84 348
6. That 5229 male candidates had secured minimum 50% of marks in
each section/ subject after the normalization process was applied. Out
of these 5229 candidates 4452 candidates were present/ appeared in
DV/ PST (Document Verification and Physical Standard Test-Height/
Chest) and 777 candidates remained absent. Out of 4452 candidates,
4261 were qualified in DV/ PST and 3148 candidates were qualified
in Physical Efficiency Test (Running) out of these 4261.
Status of Male candidates-SI-2016 after normalization is applied
Score
criteria
Qualified
for
DV/PST
Absent in
DV/PST
Present in
DV/PST
Failed in
DV/PST
Qualified in
DV/PST
Failed in
PET
Qualified
in PET
Based on
normalized
score
5229 777 4452 191 4261 1008 3148
7. That 484 female candidates had secured minimum 50% of marks in
each section/ subject after the normalization process was applied. Out
of these 484 candidates 400 candidates were present/ appeared in DV/
PST and 84 candidates remained absent. Out of 400 candidates, 395
were qualified in DV/ PST. 309 candidates were qualified in Physical
Efficiency Test (Running) Out of 395 candidates.
 28
Status of Female candidates-SI-2016 after normalization is applied
Score criteria Qualified
for
DV/PST
Absent
in
DV/PST
Present
in
DV/PST
Failed in
DV/PST
Qualified
in DV/PST
Failed
in PET
Qualified
in PET
Based on
normalized score
484 84 400 5 395 78 309
8. That in the male category 3899 names are common. Out of which
finally 2498 candidates were qualified in PET (Running)
9. That in the female category 352 names are common. Out of which
finally 246 candidates were qualified in PET (Running)
Status of candidates based on before and after normalization is applied
Score
criteria
Qualified
for
DV/PST
Absent
in
DV/PST
Present in
DV/PST
Failed in
DV/PST
Qualified
in DV/PST
Failed in
PET
Qualified
in PET
MALE 3899 457 3442 123 3319 741 2498
FEMALE 352 41 311 3 308 55 246
10.That the position of unfilled vacancies is as follows: After
completion of this section process 821 posts are unfilled/ vacant due
to non-availability of suitable candidates.
(a) Category wise unfilled posts in Males-526
Category S.I.,
Civil Police
Platoon
Commander
FSSO
Open Category
(unreserved)
NIL NIL NIL
OBC NIL NIL NIL
SC 410 44 19
ST 47 04 02
Total 457 48 21
 29
(b) Category wise unfilled posts in Females-295
Category S.I., Civil
Police
Open Category
(unreserved)
NIL
OBC 157
SC 126
ST 12
Total 295
11.That the said online written examination, scrutiny of document and
Physical Efficiency Test has been got conducted by highly certified
undertaking NSEIT’s Ltd. a Government of India undertaking and the
information in respect of present affidavit has been supplied by the
said executing agency NSEIT’s Ltd. which is entirely transparent and
non-discriminatory.”
19. As some of the respondents were not served, the subsequent order dated
28.07.2020 passed by this Court directed the State Government to publish
appropriate advertisement in two newspapers having wide circulation in the State
i.e. one in vernacular language and other in English, indicating that the judgment
and order dated 11.09.2019 passed by the High Court was under challenge in this
Court and that any person interested in supporting said judgment could appear
either in-person or through his counsel. It was also observed that in any case, those
respondents who were served in the matters and were being represented by number
of learned counsel, would be taken to be representing the interest of all the
concerned respondents.
 30
Accordingly, the advertisements were published by the State and compliance
affidavit was filed in the Registry of this Court. The matters were thereafter
directed to be placed for final disposal.
20. In these appeals, Mr. Vinod Diwakar, learned Additional Advocate General
advanced submissions on behalf of the State. Mr. P.S. Patwalia, Dr. A.M. Singhvi,
Mr. Vikas Singh, Mr. Vinay Navare, learned Senior Advocates and Mr. Amit
Pawan and Mr. Shoeb Alam, learned Advocates in that order, advanced
submissions on behalf of the concerned candidates supporting the State. The
arguments on the part of the respondents were advanced by Mr. Rakesh Dwivedi,
Mr. Kapil Sibal, Mr. V. Giri, Ms. V. Mohana, Ms. Vibha Datta Makhija, Mr.
Pallav Shishodia, learned Senior Advocates and Ms. Bansuri Swaraj and Mr.
Anand Verma, learned Advocates, in that order. Both sides placed reliance on
some of the instances highlighting the effects of normalization.
21. The submissions advanced in support of the appeals were:
(a) Expression “marks” could not be given different meaning or connotation at
two different stages of the process contemplated by Rule 15 of Recruitment Rules.
Rules 15(b) and 15(e), being part of the same Rule and part of the same process,
must carry the same meaning for expression “marks” at both the places.
 31
(b) By very nature of having the written examination in 29 sessions, some of the
papers were tougher while some were much simpler or easier and therefore there
was a necessity to put all the candidates on an even keel. Thus, the process of
normalization was rightly adopted at the threshold, that is to say, at the level
contemplated by Rule 15(b) of Recruitment Rules.
(c) Considering the large number of candidates, even before the process had
begun, the State had made it quite clear that the process of normalization would be
adopted. Thus, the action on the part of the State was completely fair and
transparent.
(d) In any case, as found by the High Court, there was not even an allegation of
mala fides or absence of bona fides in the action on part of the State.
(e) If the process of normalization was not adopted at the initial stage, some of
the rightful claimants and candidates would have got eliminated at the initial stage
though upon normalization they had easily qualified.
(f) The equality doctrine under Article 14 of the Constitution would postulate
that unequals ought not to be treated equally. If the degree of difficulty in the
question papers otherwise demanded normalization being adopted, postponing the
process of normalization to the stage of Rule 15(e) of Recruitment Rules would 
 32
only result in an unfair treatment as against those who by sheer coincidence had to
answer tougher question papers.
(g) The decision of this Court in Sanjay Singh & Anr. v. U.P. Public Service
Commission, Allahabad & Anr.5 had found that moderation would be permissible
and it was only in the peculiar fact situation of case that scaling down or
normalization was not found to be permissible.
(h) Wherever large number of candidates appear at the examination and
wherever multiple number of question papers are utilized, a process such as,
equalisation, normalization or standardisation or scaling would always be applied
so that all the candidates are judged or tested on parameters equal to all.
(i) It was not the submission of the original writ petitioners that the process of
normalization could never be adopted. All that they contended was that the stage
of normalization ought to be postponed to the state of Rule 15(e).
(j) The normal approach in service jurisprudence, where the extent of judicial
review is limited, is to give maximum leeway to the concerned authorities so long
as their actions are fair and transparent, uniform in application and without any
mala fides.
5
 (2007) 3 SCC 720.
 33
22. On the other hand, the submissions advanced on behalf of the writ
petitioners who had succeeded in the High Court, were:
(a) A candidate should always be made well aware of the minimum percentage
that he would be required to obtain in order to be eligible for further stages of the
selection. The cut off at 50%, therefore, had to be reckoned as against the written
examination that a candidate was required to undertake. The parameters ought to
be clear and well defined rather than being susceptible to any change or
modification depending upon the level of difficulty that the other candidates were
required to face.
(b) At the initial stage, that is to say, at Rule 15(b) level what was required was
minimum 50% out of maximum marks allocable for such written examination. In
other words, the candidate was to be competing against himself and his
performance was not to be judged in comparison to that of others in order to be
eligible.
(c) What Rule 15(b) required was fifty “percent” of marks and not that the
candidate ought to be in fifty “percentile”.
(d) At the Rule 15(b) stage, a specific and known target would be required to be
met by the candidate in order to enable him to reach the next level and as such 
 34
marks required at that stage ought to be “raw marks” and not any “normalized
score”.
(e) The “normalized score” would be a measure to compare inter se
performance or level of the candidates and therefore, ought to be relied upon only
for deciding the inter se merit position amongst candidates and not to disqualify
those who had secured more than 50% “raw marks”.
(f) Since Rule 15(b) required a candidate “to obtain 50% marks in each of the
subjects”, the requirement was rightly construed by the High Court to be 50% “raw
marks”.
(g) Obtaining of 50% “raw marks” being a condition of eligibility stipulated by
the rule making authority, the Board as a sub-delegate, was not competent and
justified in modifying the requirement.
(h) In the process of normalization, what factors would be considered were
never known to the candidates at the beginning of the selection process. All that
they were made aware was that they had to obtain 50% marks in the written
examination. What they had actually obtained, could not have been altered by any
artificial process such as normalization resulting in disqualification of the
candidates.
 35
(i) A candidate was required to appear for the written test of 400 marks
comprising of four subjects, all of which had to be answered in one session as part
of the same question paper. It was quite possible that questions regarding one of
those said four subjects were tougher while the other subject/subjects were much
simpler. It was the sum total of the entire paper that a candidate was required to
face and answer in one session. A candidate could as well have devoted more time
to solve tougher questions. Thus, by very nature of examination, it was difficult to
adopt the process of normalization at the initial stage and thereby hold some of the
candidates to be ineligible.
(j) The instant matters were rightly found by the High Court to be covered by
the decision of this Court in Sanjay Singh’s5 case.
(k) The decision of the High Court, in any case, stood affirmed by dismissal of
Special Leave Petition (C) Diary No.39931 of 2019.
23. At the outset, we must consider the effect of dismissal of Special Leave
Petition (C) Diary No.39931 of 2019. It was a summary dismissal at the admission
stage and the order does not disclose any reasons why the challenge was negated.
The challenge was also not at the instance of the State.
 36
In P. Singaravelan and others vs. District Collector, Tiruppur and DT and
others6
, it was observed by this Court:-
“6. It is evident that all the above orders were non-speaking orders,
inasmuch as they were confined to a mere refusal to grant special
leave to appeal to the petitioners therein. At this juncture, it is useful
to recall that it is well-settled that the dismissal of an SLP against an
order or judgment of a lower forum is not an affirmation of the same.
If such an order of this Court is non-speaking, it does not constitute a
declaration of law under Article 141 of the Constitution, or attract the
doctrine of merger. The following discussion on this proposition in
Kunhayammed v. State of Kerala7
, is relevant in this regard: (SCC pp.
383-84, para 44)
“(i) Where an appeal or revision is provided against an order
passed by a court, tribunal or any other authority before superior
forum and such superior forum modifies, reverses or affirms the
decision put in issue before it, the decision by the subordinate
forum merges in the decision by the superior forum and it is the
latter which subsists, remains operative and is capable of
enforcement in the eye of the law.
(ii) The jurisdiction conferred by Article 136 of the Constitution
is divisible into two stages. The first stage is up to the disposal of
prayer for special leave to file an appeal. The second stage
commences if and when the leave to appeal is granted and the
special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of jurisdiction
exercised by the superior forum and the content or subject-matter
of challenge laid or capable of being laid shall be determinative of
the applicability of merger. The superior jurisdiction should be
capable of reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the Supreme
Court may reverse, modify or affirm the judgment-decree or order
appealed against while exercising its appellate jurisdiction and not
while exercising the discretionary jurisdiction disposing of
6
 (2020)3 SCC 133
7
 (2000)6 SCC 359
 37
petition for special leave to appeal. The doctrine of merger can
therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not
attract the doctrine of merger. An order refusing special leave to
appeal does not stand substituted in place of the order under
challenge. All that it means is that the Court was not inclined to
exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order i.e.
gives reasons for refusing the grant of leave, then the order has
two implications. Firstly, the statement of law contained in the
order is a declaration of law by the Supreme Court within the
meaning of Article 141 of the Constitution. Secondly, other than
the declaration of law, whatever is stated in the order are the
findings recorded by the Supreme Court which would bind the
parties thereto and also the court, tribunal or authority in any
proceedings subsequent thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the country. But, this
does not amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the Supreme
Court rejecting the special leave petition or that the order of the
Supreme Court is the only order binding as res judicata in
subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate
jurisdiction of the Supreme Court has been invoked the order
passed in appeal would attract the doctrine of merger; the order
may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking
leave to appeal having been converted into an appeal before the
Supreme Court the jurisdiction of the High Court to entertain a
review petition is lost thereafter as provided by sub-rule (1) of
Order 47 Rule 1 CPC.”
(emphasis supplied)
This view has also been adopted in a plethora of decisions of
this Court, including the recent decision in Khoday Distilleries
Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.8
8
 (2019) 4 SCC 376
 38
7. Applying these observations to the present case, it is clear that
there has been no pronouncement by this Court constituting the
law of the land as to the interpretation of GOMs No. 162. In
such a situation, it is open for us to proceed to decide the instant
appeals uninfluenced by the prior orders of this Court dismissing
SLPs against the grant of relief to drivers placed similarly as the
appellants herein.”
To similar effect are the observations in C.G. Govindan v. State of Gujarat
and others9
, U.P. State Road Transport Corporation through its Chairman v.
Omaditya Verma and others10 and State of Orissa and another v. Dhirendra
Sundar Das and others11. We, therefore, reject the submission.
24. We now proceed to consider the issues arising in these matters.
25. In State of Uttar Pradesh, the matters concerning selection, promotion,
training, appointment, determination of seniority and confirmation of service of
Sub-Inspectors and Inspectors in Uttar Pradesh Civil Police were dealt with by the
Uttar Pradesh Sub-Inspectors and Inspectors (Civil Police) Service Rules, 2008
(“2008 Rules”, for short) which were framed in exercise of powers conferred under
Section 46 (2) read with Section 2 of the Police Act, 1861.
Part V of 2008 Rules dealt with “Procedure for Recruitment” and Rule 15
from said Part V was to the following effect:
9
 (1998) 7 SCC 625
10 (2005) 4 SCC 424
11 (2019) 6 SCC 270
 39
“15. For the purpose of direct recruitment to the post of Sub-Inspector, there
shall be representation to the Scheduled Castes/ Scheduled Tribes and other
Backward classes of citizen in Selection Committee shall be made in
accordance with the order made under section-7 of the Act, as amended from
time to time.
(a) Applications-
(i) A candidate shall fill the application Form from one District only.
Regarding allocation of Examination Centre the candidate may give more
than one option. However Board may allocate centre other than those
indicated by the candidate;
(ii) a separate booklet shall be attached with the application Form
containing the information regarding educational qualification, age, minimum
qualifying standards for each category of Physical Standard Test, Physical
Efficiency Test, Medical Fitness, Minimum qualifying marks for Written
Examination subject wise, copy of O.M.R. sheet for practice and other
important guidelines;
(iii) the application Form is on the O.M.R. sheet with carbon copy;
(iv) the space for candidate’s both left and right thumb impression is
provided in the application Form; two attested photographs of the candidate
be pasted on application Form one photo on the application Form and one
photo on the admission card are to be pasted at proper places.
(v) it is essential that every application Form must accompany with
the attested copes of the certificates of age 10th
, 12th and Graduation/ Post
Graduation, Sports Certificate, National Cadet Corps Certificate, Home
Guard Certificate, Caste Certificate, Unit discharge Certificate in case of Exservicemen and Certificate of Dependent of Freedom Fighters as the case may
be.
(vi) Application Form can be purchased on payment of prescribed fees
from notified Post Office/ Bank.
(vii) Duly filled up application Forms should be submitted in the same
Post Office/ Bank from where it is so purchased.
(b) Call letters:-
 40
All the certificates, submitted by the candidate will be examined
before issuance of the call letter. If a certificate is shown to be submitted
in the Application Form but not found attached with it, the Application
Form of the candidate may be cancelled. After getting the Application
Form scanned through computer, computerized call letter will be issued to
eligible candidates through the same Post Office/ Bank from where
Application Form was submitted. Code/ Name/ Postal address/ Place of
the examination centre along with the date and time of the Physical
Standard Test, Physical Efficiency Test and medical examination will be
clearly mentioned in the call letter. Documents with which the candidates
are required to reach for the examination will be clearly indicated in the
call letter. Call letter should reach at least a week before the examination.
In case call letter is not received till a week before beginning of the
examination candidates may contact helpline, serial code of the
Application Form will have to be given in this regard. Duplicate call letter
will be issued by the Board.
(c) Physical Standard Test:-
All eligible Candidates to appear in a qualifying standard for
Physical Standard Test of a qualifying nature the procedure for which is
given in Appendix-1.
(d) Preliminary Written TestThe Candidates who are declared successful in the Physical
Standard Test under clause (c) shall be required to appear in an objective
type/ Preliminary Written Test of qualifying nature. This test shall carry
200 marks.
It shall comprise three sections, namely General Knowledge
(Current Affairs, History, Geography, Constitution of India, Freedom
Struggle etc.) of 100 marks. Numerical Ability Test of 50 marks and
Reasoning of 50 Marks. The candidate who secure a minimum fifty
percent marks in the said test shall be declared successful.
(e) Physical Efficiency TestThe candidates who are declared successful in the preliminary
written test under clause (d) shall be required to appear in a Physical
Efficiency Test of qualifying nature. This test shall be of the level of
National Physical Efficiency Standard Star-I. The Board shall be 
 41
empowered to change or upgrade the standards of the said test which shall,
in no case, be lesser than the prescribed standards of Star-I. The
procedure for conducting the Physical Efficiency Test shall be such as
prescribed in Appendix-2.
(f) Main Written ExaminationThe candidates who are declared successful in the Physical
Efficiency Test under clause (e) shall be required to appear in the main
written examination which shall carry 400 marks in the following
subjects:-
Subject Maximum Marks
1. General Hindi/ 75 marks
Hindi Essay 25 marks
2. Basic Law and Constitution 100 marks (objective type)
3. Numerical and Mental Ability Test 100 marks (objective type)
4. Mental Aptitude Test/ I.O. Test/ Reasoning 100 marks (objective type)
Note: The procedure for conducting written examination shall be such as
prescribed as Appendix-3
The Candidate who fails to obtain minimum fifty percent marks in
each subject shall not be eligible for recruitment. The Board shall, having
regard to the need for securing due representation of the candidates
belonging to the Scheduled Castes, Scheduled Tribes and others under
Rule 6, prepare a list of successful candidates on the basis of marks
obtained by them in the Main Written Examination, the entire list along
with marks obtained per subject along with answer key would be
displayed on the Board’s website immediately. The number of candidates
to be selected in the main written examination shall be three time the
number of vacancies.
(g) Medical ExaminationThe candidates who have passed the Main Written Examination
will undergo the Medical Examination test shall be such as prescribed in
Appendix-3.
(h) Group Discussion:
 42
The candidates selected under the rule 15(f) shall be required to
appear in a Group Discussion for which separate groups of ten candidates
each shall be formed. The process of Group Discussion shall be carried
out under the supervision of a panel comprising Management Expert,
Psychologist and Criminologist in the presence of Chairman of the Board
or his nominee, one Additional Director General of Police nominated by
Director General of Police, Uttar Pradesh). In the said Group discussion,
Police Case Study shall be presented for discussion and the entire Group
discussion shall be completed within the stipulated timeframe. The Group
Discussion shall carry 20 marks and it will include the evaluation of
candidates Management Skill (5 marks), Presentation (5marks), Attitude
(5 marks) and Personality (5 marks). These marks shall also be uploaded
in the Board’s website.
NOTE 1- The entire process of Group Discussion shall be video-graphed
and a CD thereof shall be prepared.
NOTE 2- Nomination of officers for giving presentation to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes of
Citizens in the Selection Committee shall be made in
accordance with Section 7 of the Act, as amended from time to
time.
NOTE 3- The procedure for conducting written examination shall be
such as prescribed in Appendix-3.
(i) Selection and Merit ListThe marks obtained by each candidate in the Main Written
Examination under Rule 15 (f) shall be added to the marks obtained by
him in the Group Discussion under Rule 15 (h).
(j) The Board shall prepare a select list of candidates in order of their merit,
keeping in view the reservation policy guidelines as disclosed by the
aggregate of marks obtained by each candidate at the main written
examination and Group Discussion. If two or more candidates obtain
equal marks, the candidate obtaining higher marks in the main written
examination shall be placed higher in the list. The Board will upload the
Select List on website for all candidates immediately and shall forward it
to the Head of the Department. 
 43
25.1 Appendix 3 to 2008 Rules dealt with the procedure for written examination
which was as under: “Procedure for Written Examination
All the candidates will have to undergo for a Physical Efficiency Test
before the main Written Examination (In the case of direct recruitment
of Sub-Inspector). On the pattern of Union Public Service
Commission, computerised call letters with pasted photographs will
be sent to candidates for main Written Examination through the Post
Offices/Banks in the manner it were sent for preliminary examination.
(a) Photograph, thumb impressions of both the hands and code
number/name of the examination centre, postal address, date/time of
the examination along with the name of the District will be clearly
provided in the call letter.
(b) Call letter should reach to the candidates at least a week before
the date of the examination. In case call letter is not received a week
before the date of the examination the candidate may contact the
helpline/landline/mobile phones of the Board or can obtain the
duplicate call letter by contacting the Board’s website.
(c) Written examination will be conducted on same day at the same
time throughout the State.
(d) Candidates will be provided OMR sheet with carbon copy in the
examination hall. Candidate can carry the carbon copy with him after
the examination. When the result of all the candidates is declared the
result will be uploaded along with answer key on Board’s website
with marks obtained by them subject wise. The candidates can check
his marks from the website as per OMR (carbon copy) answer sheet.
(e) After the written examination is over answer sheets will be sent to
the Board, centre-wise in sealed covers through the safe custody
provided by the District Magistrate/Senior Superintendent of
Police/Superintendent of Police.”
26. 2008 Rules were, however, amended by the Uttar Pradesh Sub-Inspector and
Inspector (Civil Police) Service Rules, 2015 on 19th August 2015 and by the Uttar 
 44
Pradesh Sub-Inspector and Inspector (Civil Police) Service (First Amendment)
Rules, 2015 on 03rd December 2015. Rule 15 of the Amended Rules (‘Recruitment
Rules’, for short) dealing with procedure for direct recruitment to the post of SubInspector has been quoted in the judgment under appeal. It must be noted here that
Appendix 3 referable to earlier Rule 15(e) dealing with “Procedure for Written
Examination”, was deleted by virtue of the amendment.
27. Rule 15 of 2008 Rules, as it stood before the amendments, thus
contemplated :-
(i) Scrutiny/examination of certificates submitted by the candidates along
with their application formed the first step, whereafter, call letter
would be issued to the candidates;
(ii) All candidates were required to appear in the physical standard test
and only those who were successful, would appear in an objective
type preliminary written test;
(iii) Those who secured minimum 50% marks in the preliminary written
test, would appear in physical efficiency test which was of qualifying
nature. Those who qualified at that stage would then be required to
appear in the main written examination;
 45
(iv) As per Rule 15(f), the procedure for conducting the written
examination was to be in terms of Appendix 3. In terms of said
Appendix, the written examination had to be conducted on the same
date at the same time throughout the State. A list of successful
candidates who obtained minimum 50% marks would then be
prepared.
(v) Thereafter, there would be medical examination in terms of Rule 15
(g).
(vi) Finally, there would be group discussion carrying 20 marks.
(vii) The final selection and merit list would be based on the marks
obtained by each candidate in the main written examination and the
marks obtained in the group discussion.
28. The steps and stages indicated in Rule 15 of 2008 Rules, have now
undergone substantial changes in that:-
(a) After scrutiny of the application forms under Rule 15(a), all candidates
are required to appear for written test of 400 marks. Candidates found
successful in written examination will then be required to appear at the 
 46
stage of scrutiny of documents and physical standard test in terms of
Rule 15(c).
(b) Candidates failing to obtain 50% marks in each of the subjects are not to
be eligible for recruitment.
(c) Candidates found successful in the written examination are required to
appear at the stage of scrutiny of documents and physical standard test in
terms of Rule 15(c).
(d) Those who succeeded at the previous stages will then have to undergo
physical efficiency test in terms of Rule 15(d).
(e) Finally at the stage of Rule 15 (e), from amongst the candidates who are
successful in physical efficiency test, a select list of each category of
candidates shall be prepared on the basis of marks obtained by each
candidate in the written examination under clause (b).
(f) It is left to the Board to decide whether to conduct written examination
on one date in a single shift or in more than one shift or on more than
one date in different shifts with different question papers.
(g) It is again left to the Board to decide the procedure for written
examination which must be displayed on its own website.
 47
29. Under the unamended provisions, the procedure for written examination was
laid down in Appendix 3, which had to be followed by the Board while holding
main written examination in terms of the then Rule 15(f). The procedure mandated
that the main written examination be conducted on the same date and at the same
time throughout the State.
That procedure now stands displaced and the amended provisions now
confer the discretion upon the Board at two levels. Under the first part, it is up to
the Board to decide whether the written examination be conducted on the same
date, same time and at the same place or it be conducted in more than one shift on
the same date or on more than one dates in different shifts with different question
papers. Secondly, the procedure for written examination is also to be determined
by the Board but it ought to be displayed on its own website.
Going by the requirements of the amended Rule 15, the marks obtained in
the written examination will now be the determining factor subject to the
candidates fulfilling or meeting the qualifying marks and qualifying at the stages in
scrutiny of documents, physical standard test and physical efficiency test.
30. Considering the large number of candidates who had submitted online
application forms, a notification was published by the Board on 28.06.2017
indicating:-
 48
a) That the written examination would be held on more than one date in
different sittings along with different question papers.
b) Since the question papers of every sitting would be different, there
would not be possibility of equality.
c) The exercise would require normalization of the marks by using
standardized Equi-percentile Method. Such method would be as
adopted in MAH-MBA/MMS CET 2015. 31. The exercise of issuing said notification and declaring the intent as stated
above, were well within the powers of the Board in terms of Rule 15(b) as
amended by the rule making authority. It was brought to the notice of the
candidates well in advance before the written examinations were to be conducted.
In view of the large number of candidates, the written examinations were held in
29 different sittings or batches with 29 different question papers. This necessarily
implied and required the Board to adopt process of normalization in order to test
the merit of the candidates on the same footing or parameter.
The question that arises, however, is about the stage at which the process of
normalization was required to be adopted or applied. 
 49
32. Before we go into the question, we must consider some of the decisions of
this Court which had dealt with the issues of scaling or normalization.
33. In U.P. Public Service Commission v. Subhash Chandra Dixit and
others12
, the Public Service Commission had applied “scaling of marks” in
circumstances noticed by this Court as under:- “6. 4270 candidates appeared for the examination. For each of the
subjects in the written examination, there were around 14 examiners
and each of them evaluated about 300 answer-sheets, except in
language papers. U.P. PSC had earlier held similar examination for
Civil Judge (Junior Division) for selection of Judicial Officers in 1997
and 1999. According to U.P. PSC, there was wide disparity in
awarding marks by the various examiners in respect of the same
subject. The answer-sheets were randomised before being given to
examiners. The randomisation was done at three stages, namely, at the
stage of allotment of roll numbers, allotment of centres and at the time
of distribution of answer-sheets to the examiners for evaluation. U.P.
PSC received representation from several quarters to adopt a scientific
method of evaluation of marks awarded by different examiners in
respect of common papers. It was noticed that the different examiners
adopted different yardsticks to award marks to the candidates. Thus,
the candidates were left at the whims of the examiners. The gross
disparity between two sets of examiners resulted in injustice to some
of the candidates and therefore a check was required. It was noticed
that the marks awarded by two different sets of examiners required to
be scaled in accordance with certain universally accepted method.
U.P. PSC considered the different facets of scaling system and
appointed a three-member Committee to carry out an in-depth study of
the scaling system. The members of this Committee consisted of
Professors from reputed universities. U.P. PSC considered the
recommendations made by the Expert Committee and on 7-9-1996
accepted the report of the Committee. U.P. PSC resolved to apply the
formula of scaling and thereafter, it was made applicable to PCS
Preliminary Examination, 1996 and also in PCS Main Examination
held in 1996. Considering the utility of the scaling system, U.P. PSC
12 (2003) 12 SCC 701
 50
decided in its meeting on 13-10-1999 to apply the scaling pattern for
all the examinations conducted by it. In the case of Civil Judge (Junior
Division) Examination, 2000, the answer-sheets were randomised in
order to avoid duplicity or any possible mischief. The marks awarded
by each examiner were considered and scaled in accordance with the
formula adopted by U.P. PSC. The said formula was based on the
opinion of experts on the subject and accordingly, the result was
published by U.P. PSC. The merit list published by U.P. PSC was
challenged by the respondents in SLP (Civil) No. 23723 of 2002 on
the ground that the scaling system adopted by U.P. PSC was
confusing, arbitrary and without any reasonable basis. It was alleged
that arbitrary marks were awarded to certain candidates in the name of
scaling system to provide undue favour to them. It was contended that
U.P. PSC had not disclosed the guidelines and criteria adopted in
implementing the scaling system and, therefore, it was arbitrary and
unjustified. It was also contended that several candidates had been
awarded less than 40% marks without any basis whereas several other
candidates who had secured lesser marks in the written tests were
awarded more than 60% or 70% marks.”
33.1 The relevant Rules were quoted in paragraphs 15 and 17 as follows:-
“15. Part VI Rule 19 deals with appointment, probation and
confirmation. Rule 19 reads as follows:-
“19. List of candidates approved by the Commission.—The
Commission shall prepare a list of candidates who have taken
examination for recruitment to the service in order of their
proficiency as disclosed by the aggregate marks finally
awarded to each candidate. If two or more candidates obtain
equal marks in the aggregate, the Commission shall arrange
them in order of merit on the basis of their general suitability
for the service:
Provided that in making their recommendation, the
Commission shall satisfy itself that the candidate has obtained
such an aggregate of marks in the written test that he is
qualified by his ability for appointment to the service.” … … …
17. Rule 51, which is relevant for the purpose reads as follows:
 51
“51. The marksheets so obtained shall be opened on the last
day of interview and immediately thereafter the marks of
interview/personality test shall be added to the marks obtained
by the candidates in the written examination. Thereafter, on the
basis of the totals so obtained, the merit list shall be prepared
and placed before the Commission for final declaration of the
result:
Provided that the Commission may, with a view to eliminating
variation in the marks awarded to candidates at any
examination or interview, adopt a method, device or formula
which they consider proper for the purpose.”
33.2 The discussion on the point was:-
“19. The question, therefore, that arises for consideration is whether
the U.P. Public Service Commission can adopt the scaling system by
invoking the power conferred under Rule 51 of the 1976 Amendment
Act in view of Rule 19 contained in the Niyamavali, 1951. Of course,
Niyamavali, 1951 was made by the Governor in consultation with the
U.P. Public Service Commission and the High Court of Judicature at
Allahabad by virtue of the powers conferred by Article 234 of the
Constitution whereas the provisions of the 1976 (sic 1974) Act are
general guidelines for the U.P. Public Service Commission, it is not an
enactment made in consultation with the High Court. Nevertheless,
the provisions of the 1976 (sic 1974) Act are applicable for the
purpose of conducting examination for recruitment of Judicial
Officers in the State of Uttar Pradesh. The expression “aggregate
marks” used in Rule 19 of the Niyamavali, 1951 can only be
construed as the final marks awarded after the scaling system is
applied. Certainly, the proviso to Rule 51 gives ample power to the
Commission to adopt any method, device or formula to eliminate any
variation in the marks awarded to the candidates. The various
provisions contained in the 1974 Act deal with the method and
manner in which the examinations are to be conducted. The
Niyamavali, 1951 deals with only general provisions regulating
recruitment to the posts and the conditions of service. The
Niyamavali, 1951 does not deal with the method and the manner in
which the examinations are to be conducted. Various steps and
procedures have to be adopted in completing the recruitment for
which detailed procedure has been laid down. This procedure is not
part of the Niyamavali, 1951.
 52
20. We do not think that the proviso to Rule 51 is in any way in
conflict with Rule 19 of the Niyamavali, 1951. The aggregate marks
can only be considered to mean the total marks finally obtained by the
candidate after the complete valuation process is over. The dictionary
meaning of “aggregate” is thus: (i) a whole formed by combining
several disparate elements; (ii) the total score of a player or team in a
fixture comprising more than one game or round; and (iii) formed or
calculated by the combination of many separate units or items. … … …
31. There is a vast percentage difference in awarding of marks
between each set of examiners and this was sought to be minimised by
applying the scaling formula. If scaling method had not been used,
only those candidates whose answer-sheets were examined by liberal
examiners alone would get selected and the candidates whose answersheets were examined by strict examiners would be completely
excluded, though the standard of their answers may be to some extent
similar. The scaling system was adopted with a view to eliminate the
inconsistency in the marking standards of the examiners. The counsel
for the respondents could not demonstrate that the adoption of scaling
system has in any way caused injustice to any meritorious candidate.
If any candidate had secured higher marks in the written examination,
even by applying the scaling formula, he would still be benefited.
32. The Division Bench of the High Court observed that the process of
scaling was done examinerwise only and the scaling formula did not
take into consideration the average of mean of all the candidates in
one particular paper but took the mean of only that group of
candidates which has been examined by one single examiner. The
counsel for U.P. PSC submitted that the observation made by the High
Court is incorrect. The scaling formula was adopted to remove the
disparity in the evaluation of 14 examiners who participated in the
evaluation of answer-sheets and the details have also been furnished
as to how the scaling formula was adopted and applied. Therefore, we
do not think that the observation of the Division Bench that the
Commission did not take care of varying standards which may have
been applied by different examiners but has sought to reduce the
variation of the marks awarded by the same examiner to different
candidates whose answer-sheets had been examined, is correct. The
Division Bench was of the view that as a result of scaling, the marks
of the candidates who had secured zero marks were enchanced to 18
and this was illegal and thus affected the selection process. This
finding is to be understood to mean as to how the scaling system was
applied. 18 marks were given notionally to a candidate who secured 
 53
zero marks so as to indicate the variation in marks secured by the
candidates and to fix the mean marks.
33. In that view of the matter, we do not think that the application of
scaling formula to the examinations in question was either arbitrary or
illegal. The selection of the candidates was done in a better way.
Moreover, this formula was adopted by U.P. PSC after an expert study
and in such matters, the court cannot sit in judgment and interfere with
the same unless it is proved that it was an arbitrary and unreasonable
exercise of power and the selection itself was done contrary to the
Rules. Ultimately, the agency conducting the examination has to
consider as to which method should be preferred and adopted having
regard to the myriad situations that may arise before them.”
34. The basic facts in Sanjay Singh5 were noticed by this Court as under:-
“2. On the request of the Allahabad High Court, to conduct the
examination for filling 347 posts of Civil Judge (Junior Division), the
Commission issued an advertisement in Employment News dated 28-
11-2003. As many as 51,524 candidates appeared for the “U.P.
Judicial Service, Civil Judge (Junior Division) Preliminary
Examination, 2003” conducted by the Commission on 21-3-2004. The
preliminary examination was of “objective” type consisting of two
papers — General Knowledge and Law. The result was declared on
30-6-2004 and 6046 candidates were declared qualified to appear for
“U.P. Civil Judge (Junior Division) Examination (Main), 2003” which
was of “descriptive” (conventional) type. The main examination
consisted of five papers (each carrying 200 marks) — General
Knowledge, Language, Law I, II and III — and was held between 5-
10-2004 and 7-10-2004. The number of candidates who took the said
examination was 5748.
3. The answer-scripts relating to each subject were distributed to
several examiners for valuation, as it was not possible to get the large
number evaluated by a single examiner. The number of examiners, to
whom the answer-scripts were distributed for valuation, were as
follows: General Knowledge-18, Language-14, Law I-11, Law II-10,
and Law III-14. The marks assigned by the examiners were subjected
to “statistical scaling” and the results of written examination based on
such scaled marks, were declared on 7-3-2005. Thereafter, 1290
candidates were interviewed between 14-4-2005 and 26-4-2005. After
such interview, the Commission declared the final results of the 
 54
examination on 1-5-2005 based on the aggregate of “scaled marks” in
the written (main) examination and the marks awarded in the
interview. On the recommendations made by the Commission,
appointments were made to 347 posts of Civil Judge, Junior
Division.”
34.1 This Court was called upon to consider the correctness of “Scaling System”
adopted by the Public Service Commission. Considering the text of U. P. Judicial
Service Rules, 2001, this Court concluded that the “Scaling System” was unsuited
in regard to Civil Judge (Junior Division) Examination. It was noticed that in the
earlier decision in Subhash Chandra Dixit and Ors.12 this Court had upheld
scaling and had ruled that scaling was a recognized method to bring raw marks in
different subjects to a common scale. It was, however, found that there was no
provision in Judicial Service Rules akin to proviso to Rule 51 of the Public Service
Commission Procedure Rules.
The relevant discussion on the point was:-
“17. It is no doubt true that the Judicial Service Rules govern the
recruitment to Judicial Service, having been made in exercise of
power under Article 234, in consultation with both the Commission
and the High Court. It also provides what examinations should be
conducted and the maximum marks for each subject in the
examination. But the Judicial Service Rules entrust the function of
conducting examinations to the Commission. The Judicial Service
Rules do not prescribe the manner and procedure for holding the
examination and valuation of answer-scripts and award of the final
marks and declaration of the results. Therefore, it is for the
Commission to regulate the manner in which it will conduct the
examination and value the answer-scripts subject, however, to the
provisions of the Judicial Service Rules. If the Commission has made 
 55
Rules to regulate the procedure and conduct of the examination, they
will naturally apply to any examination conducted by it for
recruitment to any service, including the Judicial Service. But where
the Judicial Service Rules make a specific provision in regard to any
aspect of examination, such provision will prevail, and the provision
of the PSC Procedure Rules, to the extent it is inconsistent with the
Judicial Service Rules, will be inapplicable. Further, if both the Rules
have made provision in regard to a particular matter, the PSC
Procedure Rules will yield to the Judicial Service Rules.
18. The manner in which the list of candidates as per merit should be
prepared is provided both in the Judicial Service Rules and the PSC
Procedure Rules. Relevant portion of Rule 20(3) and Note (i) of
Appendix II of the Judicial Service Rules and Rule 51 of the PSC
Procedure Rules providing for the aggregation of marks and
preparation of the merit list, are extracted below:
Judicial Service Rules PSC Procedure Rules
“20. (3) The Commission then
shall prepare a final list of
selected candidates in order of
their proficiency as disclosed
by aggregate of marks finally
awarded to each candidate in
the written examination and
the interview.”
Note (i) of Appendix II—“(i)
The marks obtained in the
interview will be added to the
marks obtained in the written
papers and the candidate’s
place will depend on the
aggregate of both.”
“51. The marks sheets so
obtained shall be opened on
the last day of interview and
immediately thereafter the
marks of
interview/personality test
shall be added to the marks
obtained by the candidates in
the written examination.
Thereafter, on the basis of the
totals so obtained the merit
list shall be prepared and
placed before the
Commission for final
declaration of the result:
Provided that the
Commission may, with a
view to eliminating
variation in the marks
awarded to candidates at
any examination or
interview, adopt any
method, device or formula
which they consider proper
for the purpose.”
(different emphasis supplied)
 56
As the field is occupied by Rule 20(3) and Note (i) of Appendix II of
the Judicial Service Rules, they will prevail over the general provision
in Rule 51 of the PSC Procedure Rules.
19. Rule 20(3) provides for the final list of selected candidates in
order of their proficiency as disclosed by the aggregate of “marks
finally awarded to each candidate in the written examination and the
interview”. Note (i) to Appendix II of the Judicial Service Rules
provides that the “marks obtained in the interview” will be added to “the marks obtained in the written papers” and that the candidate’s
place will depend on the aggregate of both. Though the Judicial
Service Rules refers to “marks finally awarded”, the said Rules do not
contain a provision similar to the proviso to Rule 51 of the PSC
Procedure Rules, enabling the Commission to adopt any method,
device or formula to eliminate variation in the marks. It is not possible
to read the proviso to Rule 51 or words to that effect into Rule 20(3)
or Note (i) of Appendix II of the Judicial Service Rules. It is well
settled that courts will not add words to a statute or read into the
statute words not in it. Even if the courts come to the conclusion that
there is any omission in the words used, it cannot make up the
deficiency, where the wording as it exists is clear and unambiguous.
While the courts can adopt a construction which will carry out the
obvious intention of the legislative or the rule-making authority, it
cannot set at naught the legislative intent clearly expressed in a statute
or the rules. Therefore, Rule 20(3) and Note (i) of Appendix II have to
be read as they are without the addition of the proviso to Rule 51 of
the PSC Procedure Rules. If so, what can be taken into account for
preparing final list of selected candidates, are “marks finally awarded
to a candidate” in the written examination and the interview. The
marks assigned by the examiner are not necessarily the marks finally
awarded to a candidate. If there is any error in the marks awarded by
the examiner it can always be corrected by the Commission and the
corrected marks will be “the final marks awarded to the candidate”.
Where the Commission is of the view that there is “examiner
variability” in the marks (due to strict or liberal assessment of answerscripts) or improper assessment on account of erratic or careless
marking by an examiner, they can be corrected appropriately by
moderation. The moderation is either by adding (in the case of strict
examiners) or deducting (in the case of liberal examiners) a particular
number of marks which has been decided with reference to principles
of moderation applied. If there is erratic or careless marking, then
moderation is by fresh valuation by another examiner. Therefore, the
marks assigned by the examiner as moderated will be the marks
finally awarded to the candidates or marks obtained by the candidates. 
 57
Moderation, it has to be held, is inherent in the evaluation of answerscripts in any largescale examination, where there are more than one
examiner.
20. We cannot accept the contention of the petitioner that the words
“marks awarded” or “marks obtained in the written papers” refer only
to the actual marks awarded by the examiner. “Valuation” is a process
which does not end on marks being awarded by an examiner. Award
of marks by the examiner is only one stage of the process of valuation.
Moderation when employed by the examining authority, becomes part
of the process of valuation and the marks awarded on moderation
become the final marks of the candidate. In fact Rule 20(3)
specifically refers to the “marks finally awarded to each candidate in
the written examination”, thereby implying that the marks awarded by
the examiner can be altered by moderation.
21. But the question is whether the raw marks which are converted
into scaled scores on an artificial scale with assumed variables
(assumed mean marks and assumed standard deviation) can be
considered as “marks finally awarded” or “marks obtained”. Scaled
scores are not marks awarded to a candidate in a written examination,
but a figure arrived at for the purpose of being placed on a common
scale. It can vary with reference to two arbitrarily fixed variables,
namely, “assumed mean” and “assumed standard mean”. We have
dealt with this aspect in greater detail while dealing with Question
(iii). For the reasons given while considering Question (iii), we hold
that “scaled scores” or “scaled marks” cannot be considered to be
“marks awarded to a candidate in the written examination”. Therefore,
scaling violates Rule 20(3) and Note (i) of Appendix II of the Judicial
Service Rules.
*** *** ***
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 regard to the subjects. In such a
situation, moderation appears to be an ideal solution. But there are
examinations which have a competitive situation where candidates
have the option of selecting one or few among a variety of
heterogenous subjects and the number of students taking different
options also vary and it becomes necessary to prepare a common merit
list 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 recognised 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 
 58
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 who have opted for
the easier subjects may steal an advantage over those who opted for
difficult subjects. There is another possibility. The paper-setters in
regard to some optional subjects may set questions which are
comparatively easier to answer when compared to some paper-setters
in other subjects 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,
Examiner ‘A’ sets a paper in Physics appropriate to degree level and
Examiner ‘B’ sets a paper in Chemistry appropriate for matriculate
level. In view of these peculiarities, there is a need to bring the
assessment or valuation to a common scale so that the inter se merit of
candidates who have opted 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 examiners 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 candidates take examination in
different subjects. To solve the problem of inter se merit across
different subjects, statistical experts have evolved a method known as
scaling, that is creation of scaled score. Scaling places the scores from
different tests or test forms on to a common scale. There are different
methods of statistical scoring. Standard score method, linear standard
score method, normalised equipercentile method are some of the
recognised methods for scaling.
25. A. Edwin Harper Jr. and V. Vidya Sagar Misra in their
publication Research on Examinations in India have tried to explain
and define scaling. We may usefully borrow the same. A degree
“Fahrenheit” is different from a degree “Centigrade”. Though both
express temperature in degrees, the “degree” is different for the two
scales. What is 40 degrees in Centigrade scale is 104 degrees in
Fahrenheit scale. Similarly, when marks are assigned to answer-scripts
in different papers, say by Examiner ‘A’ in Geometry and Examiner
‘B’ in History, the meaning or value of the “marks” is different.
Scaling is the process which brings the marks awarded by Examiner
‘A’ in regard to Geometry scale and the marks awarded by Examiner
‘B’ in regard to History scale, to a common scale. Scaling is the
exercise of putting the marks which are the results of different scales
adopted in different subjects by different examiners onto a common
scale so as to permit comparison of inter se merit. By this exercise, the
raw marks awarded by the examiner in different subjects are 
 59
converted to a “score” on a common scale by applying a statistical
formula. The “raw marks” when converted to a common scale are
known as the “scaled marks”. Scaling process, whereby raw marks in
different subjects are adjusted to a common scale, is a recognised
method of ensuring uniformity inter se among the candidates who
have taken examinations in different subjects, as, for example, the
Civil Services Examination.”
34.2 Finally, following directions were issued by this Court:-
“53. However, insofar as the petitioners are concerned, we deem it
proper to issue the following directions to do complete justice on the
facts of the case:
(a) If the aggregate of raw marks in the written examination
and the marks in the interview of any petitioner is less than that
of the last selected candidate in the respective category, he will
not be entitled to any relief (for example, the petitioners in WP
(C) No. 165 of 2005 belonging to the category ‘BC’ have
secured raw marks of 361 and 377 respectively in the written
examinations, whereas the last five of the selected candidates in
that category have secured raw marks of 390, 391, 397, 438 and
428 respectively. Even after adding the interview marks, the
marks of the petitioners in WP (C) No. 165 of 2005 are less than
the marks of the selected candidates).
(b) Where the aggregate of raw marks in the written
examination and the interview marks of any petitioner, is more
than the aggregate of the raw marks in the written examination
and interview marks of the last selected candidate in his
category, he shall be considered for appointment in the
respective category by counting his appointment against future
vacancies. [For example, we find that petitioner Archna Rani,
one of the petitioners in WP (C) No. 467 of 2005 has secured
384 raw marks which is more than the raw marks secured by the
last five selected candidates (347, 337, 336, 383 and 335) under
the SC category and even after adding the interview marks, her
marks are more than the five selected candidates. Hence, she
should be considered for appointment.] This relief will be 
 60
available only to such of the petitioners who have approached
this Court and the High Court before 31-8-2005.”
35. In Mahinder Kumar and Ors. v. High Court of Madhya Pradesh and Ors.13
relevant clauses of Para 9 of the advertisement and the concerned Rule 7 were
considered by this Court as follows:-
“15. The advertisement stated that out of 20 posts, 11 posts were
earmarked for general category candidates and three posts each
reserved for Scheduled Castes, Scheduled Tribes and Other Backward
Class candidates. It was also made clear that if sufficient number of
suitable candidates belonging to the reserved categories were not
available, such posts would be treated as unreserved. Para 9 of the
advertisement which contains sub-clauses (i) to (vii) are relevant for
our purpose. The same are required to be extracted, which read as
under:
“(i) The candidates may be shortlisted at the preliminary stage
i.e. before written examination, by the High Court.
(ii) Eligible candidates will be required to appear in written
examination and interview at their own expenses before the High
Court of Madhya Pradesh, Jabalpur, or at such other places as may
be specified by the High Court.
(iii) The written examination shall consist of two papers, each
of 3 hours' duration and of maximum 100 marks. The object of the
written examination is to assess the knowledge of a candidate in
Law and latest pronouncements. First paper shall relate to the
Constitution of India, the Civil Procedure Code, CrPC, IPC,
Hindu Law, the Transfer of Property Act, the M.P.
Accommodation Control Act, the Limitation Act, the Evidence
Act and the M.P. Land Revenue Code, special Acts like NDPS,
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, the Prevention of Corruption Act, the Negotiable
Instrument Act.
13 (2013) 11 SCC 87
 61
Second paper will be in two parts, the first part will contain
factual data of a civil case and a criminal case on the basis of
which the candidate shall prepare judgment in the civil case and
criminal case. The second part will contain a passage in Hindi to
be translated into English and a passage in English to translate
into Hindi.
(iv) Only such candidates will be called for interview as the High
Court may decide, on the basis of evaluation of their performance
in the written examination.
(v) The interview shall carry 25 marks.
(vi) Candidates shall be selected on the basis of aggregate marks
obtained by them in both the written examination and interview.
(vii) On completion of the selection process, the result of
examination (list of selected candidates) shall be published in
M.P. Rajpatra and all the candidates both successful and
unsuccessful shall be supplied marksheets at their given addresses
by ordinary post.”
16. The said Para 9 states as to how the short-listing of candidates at
the preliminary stage itself before the written examination were to be
made by the High Court, the requirement of the candidates to appear
in the written examination consisting of two papers where, the
maximum marks in each paper was 100 and the relevant laws in which
the examination would be conducted in both the papers was also
specified. In Para 9(iv), it was specified that the High Court may
decide on the basis of evaluation of their performance in the written
examination for calling those candidates for interview. Under Para
9(v), the interview marks were specified as 25. In Para 9(vi), it was
mentioned that the candidates would be selected on the basis of
aggregate marks obtained by them, both in the written examination
and the interview. The last paragraph of the amended Rule 7 is also
relevant, which reads as under:
“The procedure of selection for direct recruitment and
promotion shall be such, as may be specified by the High Court
from time to time.”
 62
35.1 On the question whether the High Court was entitled to adopt the process of
normalization while evaluating performance in the written examination, this Court
observed as under: “37. Once we steer clear of the said position, the next submission of
the learned Senior Counsel for the petitioner was that when assuming
Rule 7 empowers the High Court to follow its own procedure, it
should have been disclosed in the advertisement. The contention of
the learned Senior Counsel was that whatever procedure evolved by
the High Court should have been disclosed well in advance by the
High Court or at least before the written examination was conducted.
When we consider the said submission, we find that there is a clear
indication in Para 9 of the advertisement as to in what manner the
High Court is going to conduct the selection process:
37.1. Para 9(i) makes it clear that the candidates may be shortlisted at
the preliminary stage i.e. before the written examination is held by the
High Court. No one can find fault with such a prescription, inasmuch
as such short-listing will have to be necessarily made in order to
ensure that only such of those candidates who satisfy the conditions in
Paras 2-8 of the advertisement are duly complied with.
37.2. In fact, Para 8 makes it clear that non-receipt of the forms of
application, etc. in time by the candidate will not be accepted as an
excuse for late submission of the application forms. Meaning thereby,
that any application for the post to be submitted before 30-9-2006,
should be complete in all respects furnishing whatever details which
were required to be furnished and also satisfy the various conditions
such as, age restriction, years of practice, character certificate,
citizenship, etc. If such conditions are not fulfilled, by exercise of such
power contained under Rule 9(i), the High Court would be fully
entitled to exclude the consideration of such candidates for
participating in the written examinations.
37.3. In Para 9(iii), it has been sufficiently indicated that each paper of
the written examination will be for a duration of 3 hours, with a
maximum of 100 marks to be scored. The object in holding the written
examination in both the first and second papers, have also been
specifically highlighted in Para 9(iii).
 63
37.4. Once the written examination part is fulfilled, the High Court
has to formulate a procedure by which the answer papers are to be
evaluated in order to ascertain the marks scored by the respective
candidates. Therefore, in Para 9(iv) it has been specified that before
calling any of the candidates for interview who appeared for the
written examination, an evaluation will have to be made and based on
the evaluation and performance, the High Court will decide as to who
should be called for the interview.
37.5. The expression “evaluation” would, therefore, take into its fold
the minimum marks to be scored, the manner in which the evaluation
is to be made and in the event of any requirement, to equalise the
merits of the candidate in the written examination and follow any
appropriate procedure in consonance with law, in order to ultimately
arrive at a fair process by which the candidate can be called for
interview, based on the evaluation of the marks in the written
examination.
38. In a situation like this, where nearly 3000 candidates appeared for
the written examination and the answer papers were evaluated by
several District Judges, it cannot be held that there was every scope
for variation in the assessment of the answers and the award of marks
valued by different valuers. The High Court in exercise of its authority
under Rule 7, read along with Para 9(iv) adopted a fair procedure to
normalise the marks of the candidates in order to assess their
respective merits. Therefore, the expression “evaluation” used in Para
9(iv), should be held to fully empower the High Court to even resort to
such a step in a case like this, where more number of District Judges
evaluated the answer sheets and thereby, it required the intervention of
the High Court on its administrative side, to find a fair method by
which the normalisation of the marks could be worked out.”
The action on part of the High Court in adopting the process of
normalization was thus, accepted by this Court and the challenge raised against
such process was rejected.
36. It is important to note that Subhash Chandra Dixit12 was decided by a
Bench of two Judges of this Court while Sanjay Singh5 and Mahinder Kumar13
 64
were decided by Benches of three Judges. Further, the decision in Sanjay Singh5
was noticed in paragraph 7 of the decision in Mahinder Kumar13 but Rule 7 and
Para 9 (iv) of the advertisement were found sufficiently wide enough to admit
adoption of a procedure by which normalization of marks could be worked out.
37. In Sunil Kumar and others v. Bihar Public Service Commission and
others14
, a Bench of two Judges of this Court, among other questions, considered
the applicability of the decision in Sanjay Singh5 to cases where the candidates
were tested in different subjects as against an examination where the question
papers were compulsory and common to all the candidates. The discussion was:-
“11. Having considered the rival submissions advanced before us, we
are of the view that the question that calls for an answer in the present
case is whether this Court in Sanjay Singh5 had laid down any
principle or direction regarding the methodology that has to be
adopted by the Commission while assessing the answer scripts of the
candidates in a public examination and specifically whether any such
principle or direction has been laid down governing public
examinations involving different subjects in which the candidates are
to be tested. Closely connected with the aforesaid question is the
extent of the power of judicial review to scrutinise the decisions taken
by another constitutional authority i.e. the Public Service Commission
in the facts of the present case. … … …
13. We have read and considered the judgment in Sanjay Singh5
. In
the said case, this Court was considering the validity of the selections
held for appointment in the U.P. Judicial Service on the basis of a
competitive examination in which the Rules prescribed five (5) papers
all of which were compulsory for all the candidates. There is no
dispute that the U.P. Public Service Commission in the aforesaid case
had scaled down the marks awarded to the candidates by following the
scaling method. This Court, after holding that the Judicial Service
14 (2016) 2 SCC 495
 65
Rules which governed the selection did not permit the scaled down
marks to be taken into consideration, went into the further question of
the correctness of the adoption of scaling method to an examination
where the papers were compulsory and common to all the candidates.
In doing so, it was observed as follows: (SCC p. 742, para 24) “24. The moderation procedure referred to in the earlier
paragraph will solve only the problem of examiner variability,
where the examiners 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 candidates take examination in different subjects. To
solve the problem of inter se merit across different subjects,
statistical experts have evolved a method known as scaling, that
is creation of scaled score. Scaling places the scores from
different tests or test forms on to a common scale. There are
different methods of statistical scoring. Standard score method,
linear standard score method, normalised equipercentile method
are some of the recognised methods for scaling.”
It was furthermore observed: (SCC p. 742, para 25) “25. … Scaling process, whereby raw marks in different
subjects are adjusted to a common scale, is a recognised method
of ensuring uniformity inter se among the candidates who have
taken examinations in different subjects, as, for example, the
Civil Services Examination.”
14. After holding as above, this Court, on due consideration of several
published works on the subject, took note of the preconditions, the
existence or fulfilment of which, alone, could ensure an acceptable
result if the scaling method is to be adopted. As in Sanjay Singh5 the
U.P. Public Service Commission had not ensured the existence of the
said preconditions the consequential effects in the declaration of the
result were found to be unacceptable. It was repeatedly pointed out by
this Court (paras 36 and 37) that the adoption of the scaling method
had resulted in treating unequals as equals. Thereafter, in para 45 this
Court held as follows: (SCC p. 751) “45. We may now summarise the position regarding scaling
thus:
(i) Only certain situations warrant adoption of scaling
techniques.
 66
(ii) There are number of methods of statistical scaling, some
simple and some complex. Each method or system has its merits
and demerits and can be adopted only under certain conditions
or making certain assumptions.
(iii) Scaling will be useful and effective only if the distribution
of marks in the batch of answer scripts sent to each examiner is
approximately the same as the distribution of marks in the batch
of answer scripts sent to every other examiner.
(iv) In the linear standard method, there is no guarantee that the
range of scores at various levels will yield candidates of
comparative ability.
(v) Any scaling method should be under continuous review and
evaluation and improvement, if it is to be a reliable tool in the
selection process.
(vi) Scaling may, to a limited extent, be successful in
eliminating the general variation which exists from examiner to
examiner, but not a solution to solve examiner variability arising
from the ‘hawk-dove’ effect (strict/liberal valuation).”
15. Moreover, in para 46, this Court observed that the materials placed
before it did not disclose that the Commission or any expert body had
kept the above factors in mind for deciding to introduce the system of
scaling. In fact, in the said paragraph this Court had observed as
follows: (Sanjay Singh5
 , SCC p. 751) “46. … We have already demonstrated the anomalies/absurdities
arising from the scaling system used. The Commission will have
to identify a suitable system of evaluation, if necessary by
appointing another Committee of Experts. Till such new system
is in place, the Commission may follow the moderation system
set out in para 23 above with appropriate modifications.”
16. In Sanjay Singh5 an earlier decision of this Court approving the
scaling method i.e. U.P. Public Service Commission v. Subhash
Chandra Dixit12 to a similar examination was also noticed. In para 48
of the judgment in Sanjay Singh5 it was held that the scaling system
adopted in Subhash Chandra Dixit12 received this Court’s approval as
the same was adopted by the Commission after an in-depth expert
study and that the approval of the scaling method by this Court in
Subhash Chandra Dixit12 has to be confined to the facts of that case.
17. Finally, in para 51 of the Report in Sanjay Singh5 the Court took
note of the submission made on behalf of the Commission that it is not 
 67
committed to any particular system and “will adopt a different or
better system if the present system is found to be defective” (SCC p.
754).
18. In Sanjay Singh5 the Court was considering the validity of the
declaration of the results of the examination conducted by the Public
Service Commission under the U.P. Judicial Service Rules by
adoption of the scaling method. This, according to this Court, ought
not to have been done inasmuch as the scaling system is more
appropriate to an examination in which the candidates are required to
write the papers in different subjects whereas in the examination in
question all the papers were common and compulsory. To come to the
aforesaid conclusion, this Court had necessarily to analyse the detailed
parameters inherent in the scaling method and then to reach its
conclusions with regard to the impact of the adoption of the method in
the examination in question before recording the consequences that
had resulted on application of the scaling method. The details in this
regard have already been noticed (Sanjay Singh case5
, paras 45 and
46) (in paras 14 and 15 herein).
19. The entirety of the discussion and conclusions in Sanjay Singh5 was with regard to the question of the suitability of the scaling system
to an examination where the question papers were compulsory and
common to all candidates. The deficiencies and shortcomings of the
scaling method as pointed out and extracted above were in the above
context. But did Sanjay Singh5 lay down any binding and inflexible
requirement of law with regard to adoption of the scaling method to an
examination where the candidates are tested in different subjects as in
the present examination? Having regard to the context in which the
conclusions were reached and opinions were expressed by the Court it
is difficult to understand as to how this Court in Sanjay Singh5 could
be understood to have laid down any binding principle of law or
directions or even guidelines with regard to holding of examinations;
evaluation of papers and declaration of results by the Commission.
What was held, in our view, was that scaling is a method which was
generally unsuitable to be adopted for evaluation of answer papers of
subjects common to all candidates and that the application of the said
method to the examination in question had resulted in unacceptable
results. Sanjay Singh5 did not decide that to such an examination i.e.
where the papers are common the system of moderation must be
applied and to an examination where the papers/subjects are different,
scaling is the only available option. We are unable to find any
declaration of law or precedent or principle in Sanjay Singh5 to the
above effect as has been canvassed before us on behalf of the
appellants. The decision, therefore, has to be understood to be 
 68
confined to the facts of the case, rendered upon a consideration of the
relevant Service Rules prescribing a particular syllabus.
20. We cannot understand the law to be imposing the requirement of
adoption of moderation to a particular kind of examination and scaling
to others. Both are, at best, opinions, exercise of which requires an indepth consideration of questions that are more suitable for the experts
in the field. Holding of public examinations involving wide and varied
subjects/disciplines is a complex task which defies an instant solution
by adoption of any singular process or by a straitjacket formula. Not
only examiner variations and variation in award of marks in different
subjects are issues to be answered, there are several other questions
that also may require to be dealt with. Variation in the strictness of the
questions set in a multi-disciplinary examination format is one such
fine issue that was coincidentally noticed in Sanjay Singh5
. A
conscious choice of a discipline or a subject by a candidate at the time
of his entry to the University thereby restricting his choice of papers in
a public examination; the standards of inter-subject evaluation of
answer papers and issuance of appropriate directions to evaluators in
different subjects are all relevant areas of consideration. All such
questions and, may be, several others not identified herein are required
to be considered, which questions, by their very nature should be left
to the expert bodies in the field, including, the Public Service
Commissions. The fact that such bodies including the Commissions
have erred or have acted in less than a responsible manner in the past
cannot be a reason for a free exercise of the judicial power which by
its very nature will have to be understood to be, normally, limited to
instances of arbitrary or mala fide exercise of power.”
38. In Uttar Pradesh Public Service Commission vs. Manoj Kumar Yadav
and another15
, the process of selection comprised of preliminary examination in
General Studies and one optional subject, whereas, the main written examination
was to consist of four compulsory papers i.e. two in General Studies and one paper
each in Hindi and English essay. The Public Service Commission had adopted
“Scaling of Marks” at the preliminary as well as the main written examination. A
15 (2018) 3 SCC 706
 69
Bench of two Judges of this Court applied the law laid down by this Court in
Sanjay Singh5 and found that scaling method could not have been adopted for
compulsory subjects. However, considering the fact that the directions issued by
the High Court would result in displacement of a number selected candidates and
alteration of merit list causing serious prejudice to those appointed and working for
last few years, the relief was not granted. The relevant discussion is to be found in
paragraphs 13 and 15:-
“13. In the PCS Examination, 2004 and the Backlog Examination,
2004 the candidates had to take part in the main written examinations
which consisted of four compulsory subjects and two optional
subjects. The compulsory subjects were common to all candidates and
the two optional subjects were to be chosen from the available 33
subjects as mentioned in the advertisements. As per the judgment of
this Court in Sanjay Singh case5
, the Commission could have followed
the scaling method only for the optional subjects and not for the
compulsory subjects. However, it is clear from the submissions made
on behalf of the appellant in the High Court that scaling method was
followed even for compulsory subjects. We approve the findings of
the High Court that the evaluation of the PCS and Backlog
Recruitment Examinations, 2004 was contrary to the judgment of this
Court in Sanjay Singh case5
. 15. It is settled law that in certain situations, on account of subsequent
events, the final relief granted by this Court may not be the natural
consequence of the ratio decidendi of its judgment. In such situations,
the relief can be moulded by the Court in order to do complete justice
in the matter. It is relevant to note the fact that Sanjay Singh case5 was
also made prospective in operation and this Court declined to interfere
with the selections already made in that case on the basis that relief
can be moulded. In the instant case, the examinations were conducted
by the appellant on the basis of the pattern being followed by them
since 1996. At the time when the examinations were conducted, a
judgment of this Court in U.P. Public Service Commission v. Subhash
Chandra Dixit12 approving the scaling method adopted by the
Commission held the field. Moreover, the selected candidates were 
 70
appointed on the basis of an interim order passed by this Court in
2007 and they have been working continuously since then. There are
no allegations of any irregularities or malpractices in the conduct of
the said examinations. The candidates who participated in the
examinations cannot be found fault with for the error committed by
the appellant in adopting the scaling method. In view of the above, we
do not deem it fit to disturb the appointments made pursuant to the
selections in the examinations conducted in 2004.”
39. In the backdrop of these decisions, what is of importance in the instant
matters is the fact that more than 6.3 lakh applicants had submitted online
application forms whose candidature was tested in written examinations held in 29
different batches over 12 days. The cases dealt with by this Court did not deal with
the fact situation akin to that which arises in the instant matters. In the aforesaid
decisions the number of candidates was not quite large (4270 in Subhash Chandra
Dixit12
, 51524 and 5748 in preliminary and main examinations respectively in
Sanjay Singh5 and about 3000 in Mahinder Kumar13). Further, these decisions
dealt with “single examination” for the concerned papers or subjects and the
variability was either with regard to the examiners or in the circumstances arising
from different optional subjects.
40. Cases of single examination where there are multiple number of examiners
may call for moderation to be adopted by the examiner-in-chief or such body
constituted for the purposes. On the contrary, scaling of marks has been accepted
to be an appropriate method where candidates are tested in different subjects. As 
 71
noticed by this Court in Sanjay Singh5
, a candidate having secured 70% marks in
“Mathematics” cannot be said to be on an equal footing as against the candidate
who had secured 70% marks in “English”. As against examiner variability in the
same or compulsory examination, the subject variability was thus found to be a
good ground to adopt “Scaling of Marks” as a method to put all the candidates on
an even keel.
41. In the instant cases, we are however concerned with a dimension which had
not been considered earlier, namely variability on account of the fact that the
candidates were tested on different dates over 12 days through different sets of
question papers. The Board could not possibly have gone ahead with examination
for 29 different batches with the same type of questions as the subsequent batches
would then have had advantage of having seen the pattern of questions put to the
earlier batches. Thus, though the subjects were same, the question papers would
necessarily be different in terms of quality and approach. In a situation such as
that the “Scaling of Marks” had to be adopted and that would always be the correct
approach.
42. As found by this Court in Sunil Kumar14
, the decision in Sanjay Singh5
cannot be said to have laid down an inflexible rule that Scaling of Marks can never
be adopted. As a matter of fact, though, a Bench of three Judges of this Court 
 72
noticed the earlier decision in Sanjay Singh5
, it found the approach of the High
Court in “Scaling of Marks” even in the same examination to be appropriate in
Mahinder Kumar13 so as to eliminate every scope for variation in the assessment
of answers and award of marks valued by different valuers. The concerned
provisions namely, clause (iv) of Para 9 of the advertisement and last paragraph of
amended Rule 7, were construed to be adequate to empower and permit the High
Court to adopt “scaling of marks”.
43. On lines similar to Rule 7 considered in Mahinder Kumar13
, the clause
“Detailed procedure for written examination shall be determined by the Board and
will be displayed on its own website” as appearing in Rule 15(b), specifically
empowered the Board to devise or determine the procedure. With deletion of
Appendix-3 and specific empowerment in Rule 15(b), the Board could have
multiple examinations instead of one single examination. By very nature of such
empowerment and in the backdrop of conducting an examination for more than 6
lakh candidates, the Board was entitled to adopt the process of ‘scaling of marks’
or ‘normalization’. Given the facts and circumstances, the process of ‘scaling of
marks’ or normalization was inevitable in the instant matter and was necessarily
required to be undertaken. This aspect of the matter is accepted by the learned 
 73
counsel for the respondents but in their submission the appropriate stage for
application of normalization would be at Rule 15(e) level.
44. According to the learned Additional Advocate General and the learned
counsel appearing for the candidates whose names figured in the select list
prepared by the Board, the stage at which normalization was required to be applied
was at Rule 15 (b) level. In their submission, if the basic idea was to put all
candidates on an even and equal parameter through the process of normalization
and, if the scoring in the written examination was to be the main determining
criteria for selection, the normalization had to be applied at the initial stage itself.
On the other hand, according to the learned counsel for the original writ
petitioners, who found themselves to be disqualified for having secured less than
50% marks after normalization, the application of normalization had to be at the
stage of preparation of the final merit list. It was submitted that regardless whether
the candidate had obtained less than 50% “normalized score” in a subject or
subjects, he would still be part of the final merit list as he had already secured 50%
“raw marks” in each of the subjects.
45. It is true that the written examination, subject to the qualifying facets such as
Scrutiny of Documents, Physical Standard Test and Physical Efficiency Test, is 
 74
now the determining criteria. Going by the plain language of the concerned
provisions, what is clear is both provisions i.e. Rule 15(b) and 15(e) refer to the
expression ‘marks’. Rule 15(b) of Recruitment Rules requires every candidate to
obtain minimum 50% marks in each of the subjects and states, “candidates failing
to obtain 50% marks in each of the above subjects shall not be eligible for
recruitment”. Rule 15(e) requires the Board to prepare a select list of each
category of candidates, “on the basis of marks obtained by each candidate in
written examination under clause (b)”. The provisions do not, on the plain
language employed, demand different yardstick or principle to be adopted.
46. If we construe the expression ‘marks’ in Rules 15(b) and 15(e) to be ‘raw
marks’ at both the stages that will go against the very basic idea which calls for
applicability of ‘scaling of marks’ or ‘normalization’ because of the variability
arising from multiple examinations. Thus, if ‘raw marks’ is to be the basis at both
the stages, the candidates would never be tested on an equal footing or basis. This
would, therefore, call for either of the following two alternatives:-
Either to consider expressions ‘marks’ in both these provisions to be marks
after the adoption of normalization, or ‘normalized score’, or to accept the course
suggested by the learned counsel for the respondents and construe expression 
 75
‘marks’ in Rule 15(b) to be ‘raw marks’ and apply normalization at Rule 15(e)
stage only to consider inter se merit position.
47. However, if the submission advanced by the learned counsel for respondents
is accepted, it will lead to incongruities on three counts.
It may, as well, lead to a situation where a person, in the final analysis i.e.
after the ‘scaling of marks’ or ‘normalization’ is adopted, may have failed to
secure more than 50% “normalized score” in a subject or subjects and yet he will
be part of the Select List.
Secondly, those who may have secured more than 50% ‘normalized score’
but less than 50% ‘raw marks’ will be out of reckoning as they would not be
allowed to go beyond Rule 15(b) stage.
Lastly, such a course will necessarily imply that the expression “Candidates
failing to obtain 50% marks in each of the above subject shall not be eligible for
recruitment” [as appearing in Rule 15(b)] will have to be treated differently as
against the preparation of a select list [in terms of Rule 15(e)] “on the basis of
marks obtained by each candidate in written examination under clause (b)”.
48. It is relevant to note that the ineligibility referred to in Rule 15(b) is as
against ‘recruitment’. The criteria for eligibility is not just confined to the stages 
 76
upto 15(c) and 15(d) but must be fulfilled all through i.e. upto recruitment. Rule
15(e) makes specific and clear reference to - marks obtained by each candidate in
written examination under clause (b). The verb used is ‘obtain’ at both the places
i.e. in Rule 15(b) and in Rule 15(e). At both the stages the marks ‘obtained’ in
written examinations referable to clause (b), are the relevant criteria for (i) being
eligible for recruitment in terms of Rule 15(b) and for (ii) preparing the select list
under Rule 15(e). Adopting a different yardstick as suggested by the learned
counsel for the respondents will certainly lead to incongruent situations as stated
above.
49. It is true that the same expression appearing at different places in a statute
has, on some occasions, been construed by this Court differently, depending upon
the context in which such expressions appear. For instance, in Commissioner of
Income Tax, Bangalore v. Venkateswara Hatcheries (P) Ltd.16
, this Court relied
upon the earlier decision of this Court in Shamrao Vishnu Parulekar v. The
District Magistrate, Thana17 and found the expression “Articles of things” could
not be assigned the same meaning as was used in Fifth Schedule to Sections 32A
and 80J of the Income Tax Act. The discussion on the point was:
“18. It was then urged by the learned counsel for the assessee that the
Act uses the words “articles or things” at several places and the
16 (1999) 3 SCC 632
17 (1956) SCR 644
 77
meaning assigned to them in other places of the Act should also be
assigned under Section 32-A and Section 80-J of the Act. The Fifth
Schedule of the Act sets out a list of items which are treated as articles
or things manufactured or produced for the purpose of Section
33(1)(b) of the Act. In this Schedule we find that processed seeds
which are products of plants have been shown as “articles or things”.
Similarly, Item (30) of the said Schedule is “fish”, which is an animate
object, but it has been shown under the heading “articles or things”.
On the strength of the meaning assigned to articles and things in the
Fifth Schedule of the Act, it was urged that hatching of chicks is also
production of “articles or things”. It is, no doubt, true that processed
seeds and fish have been described under the heading “articles or
things” in the Fifth Schedule. Generally, the same words in a statute
have the same meaning whenever used in that statute, but they may
also have a different meaning in different provisions of the same
statute. In Shamrao Vishnu Parulekar v. Distt. Magistrate, Thana17 :
“But it is contended by Mr Chatterjee that the expression
‘grounds on which the order has been made’ occurring in
Section 3(3) is, word for word, the same as in Section 7, that the
same expression occurring in the same statute must receive the
same construction, that what Section 3 requires is that on the
making of an order for detention, the authority is to formulate
the grounds for that order, and send the same to the State
Government under Section 3(3) and to the detenu under Section
7, and that therefore it was not sufficient merely to send to the
State Government a report of the materials on which the order
was made. Reliance was placed on the following passage
in Maxwell's Interpretation of Statutes, Edn. 10, p. 522:
‘It is, at all events, reasonable to presume that the same
meaning is implied by the use of the same expression in
every part of an Act.’
The rule of construction contended for by the petitioners is
well settled, but that is only one element in deciding what the
true import of the enactment is, to ascertain which it is necessary
to have regard to the purpose behind the particular provision and
its setting in the scheme of the statute. ‘The presumption’, says
Craies, ‘that the same words are used in the same meaning is
however very slight, and it is proper “if sufficient reason can be
assigned, to construe a word in one part of an Act in a different
sense from that which it bears in another part of an Act”’.
(Statute Law, Edn. 5, p. 159) And Maxwell, on whose statement
of the law the petitioners rely, observes further on:
 78
‘But the presumption is not of much weight. The same
word may be used in different senses in the same statute,
and even in the same section.’ ”
19. The same word, if read in the context of one provision of the Act,
may mean or convey one meaning and another in a different context.
The legislature in its wisdom had chosen to place processed seeds and
fish under the heading articles or things in the Fifth Schedule as the
legislature is competent to give artificial meaning to any word. We
are, therefore, of the opinion that the meaning assigned to the words
“articles or things” in the Fifth Schedule cannot be assigned to the
words “articles or things” used in Sections 32-A and 80-J of the Act.
20. Learned counsel for the assessee relied upon several decisions
under the Sales Tax Acts, Central Excise Act and the provisions of
other statutes for the contention that “article” includes goods and
goods could be an animate object and, viewed in this light, the
hatching of eggs would come within the meaning of the word
“produce” which is of a wider import than the word “manufacture”.
No doubt, several Sales Tax Acts have included animate things for the
purpose of levying tax on sales. But the meaning assigned to a
particular word in a particular statute cannot be imported to a word
used in a different statute.
21. We, therefore, reject the submissions of the learned counsel for the
assessee. For the aforesaid reasons, we hold that the decision by the
Andhra Pradesh High Court in the case of CIT v. Sri Venkateswara
Hatcheries (P) Ltd.18 does not lay down the correct view of law,
whereas we approve the decision of the Bombay High Court in the
case of CIT v. Deejay Hatcheries19
. 22. The result of the aforesaid discussion is that the assessee is neither
an industrial undertaking nor is it engaged in the business of
producing “articles or things”. Consequently, the assessee is not
entitled to investment allowance under Section 32-A of the Act and
deductions under Sections 80-HH, 80-HHA, 80-I and 80-J of the Act.”
18 (1988) 174 ITR 231 (AP)
19 (1995) 211 ITR 652 (Bom)
 79
50. Thus, it is the context which must determine whether the same expression
occurring at two different places must be considered differently or in the same
light.
51. If we accept the interpretation sought to be placed by the learned counsel for
the respondents it would result in a situation where a person having ‘normalized
score’ of 50% marks or above may be out of reckoning because his raw marks
were less than 50%; and, there are sizable number of such persons. At the same
time, someone whose ‘normalized score’ was well below 50% may still be part of
the Select List because his “raw marks” were above 50%.
52. If the intent is to see that every candidate must have obtained minimum 50%
marks and those ‘candidates failing to obtain 50% marks in each of the above
subjects shall not be eligible for recruitment’ as mandated by Rule 15(b) of
Recruitment Rules or by paragraph 9 of the notification dated 28.6.2017, even
going by the context and purposive interpretation, the expression ‘marks’ must be
given the same meaning at both the stages; and the only possible meaning that can
be ascribed is ‘normalized score’. Adopting different standards as suggested by
the learned counsel for the respondents would result in anomalous situations. Such
anomaly will however stand removed if the expression ‘marks’ appearing in Rules
15(b) and 15(e) stages is construed in the same light and as ‘normalized score’. 
 80
The submissions advanced by the learned Additional Advocate General and other
learned counsel for the appellants, therefore, merit acceptance.
53. In conclusion, the exercise undertaken by the Board in adopting the process
of normalization at the initial stage, that is to say, at the level of Rule 15(b) of
Recruitment Rules was quite consistent with the requirements of law. The power
exercised by the Board was well within its jurisdiction and as emphasized by the
High Court there were no allegations of mala fides or absence of bona fides at any
juncture of the process. One more facet of the matter is the note of caution
expressed by this Court in paragraph 20 of its decision in Sunil Kumar and others
v. Bihar Public Service Commission and others.14 As observed by this Court, the
decisions made by expert bodies, including the Public Services Commissions,
should not be lightly interfered with, unless instances of arbitrary and mala fide
exercise of power are made out.
54. We have, therefore, no hesitation in accepting the challenge raised on behalf
of the State and allowing these appeals and setting aside the judgment and order
passed by the High Court presently under challenge. The results declared by the
Board on 28th February 2019 shall now be given effect as early as possible.
 81
55. It must, however, be observed that the State and the Board had permitted
candidates from both the categories i.e. who had secured more than 50% ‘raw
marks’ as well as those who had secured more than 50% ‘normalized score’, as
detailed in paragraph 5 hereinabove. Such candidates had participated in all the
further stages, namely, in physical standard test, physical efficiency test, though
some of them from the first category were finally disqualified on the ground
that they had secured less than 50% ‘normalized score’. The State may
consider making some allowance in favor of such subsequently disqualified
candidates either by granting some weightage and/or age relaxation in the next
selection.
56. Before parting, we must acknowledge the valuable assistance provided by all
the learned counsel who appeared for the parties in the instant matters.
The appeals are allowed in aforesaid terms without any order as to costs.
..………..…..……..……J.
 (Uday Umesh Lalit)
 ..………….……………J.
 (Vineet Saran)
New Delhi;
7
th January, 2022.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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