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)

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.

Provincial Armed Constabulary.

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

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. 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

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.

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

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”.

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.”

Uttar Pradesh Police Recruitment and Promotion Board, Lucknow.

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.

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

(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.

13. The Order dated 27.05.2019 passed by the Division Bench was challenged

by some of the candidates by preferring Special Leave Petition (Civil) No.13551 of

2019 (Manish Kumar Yadav and Ors. vs. State of Uttar Pradesh and Ors.) which

came up before the Vacation Bench of this Court on 12.06.2019 when following

order passed by this Court: -

“We do not find any cogent grounds to interfere with the order of

the Division Bench impugned. The selected candidates have given an

undertaking that they shall not claim any lien or right over the

appointments which shall be subject to the result of the writ petition.

The special leave petition is not entertained.

We, however, request the Chief Justice of the High Court to

constitute a special Division Bench to expeditiously hear the writ

petition on day-to-day basis without granting necessary adjournments

and to dispose of the writ petition as expeditiously as possible

preferably within thirty days from the date of constitution of the

Bench.

The special leave petition and pending applications are accordingly

disposed of.”

14. Thereafter, a Special Division Bench was constituted at Allahabad.

Similarly, a Special Bench was also constituted at Lucknow Bench of High Court.

The Special Division Bench constituted at Allahabad allowed Writ Petition

No.23733 of 2018 and other connected matters by its judgment and order dated

11.09.2019 which is presently under challenge.

14.1 The rival submissions advanced by the parties, were summarized by the

Special Division Bench at Allahabad as under:-

“61. Having noted the rival contentions, at length, the submissions of

the learned counsel for the petitioners, in brief can be summarized as

follows:-

(i) the Selection Board has been conferred limited power under the

Recruitment Rules only to determine the procedure of written

examination;

(ii) the Selection Board is not vested with the power and authority to

determine the procedure of selection which has been prescribed by the

rule making authority;

(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: -

“(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)

The U.P. Sub Inspector and Inspector (Civil Police) Service (First Amendment) Rules, 2015 framed in

exercise of powers under the Police Act, 1861.

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.

Candidates found successful in written examination under

clause (b) shall be required to appear in Scrutiny of Documents and

physical Standard Test. Keeping in view the total number of

vacancies, the Board shall decide at its own level, the number of

candidates on the basis of merit to be called for this test. Physical

Standards for candidates are as follows:-

1. Minimum Physical Standards for male candidates are as

follows:-

(a) Height:-

xxxxxx

(b) Chest:-

xxxxxx

2. Minimum Physical Standards for female candidates are as

follows:-

(a) Height:-

xxxxxx

(b) Weight:-

xxxxxx

For conducting this examination, a Committee will be constituted by

the Board in which a Deputy Collector nominated by the District

Magistrate will be the Chairman and the Deputy Superintendent of

Police nominated by the District Superintendent of Police will be the

member, the other members of the committee shall be 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

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

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

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

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%

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

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.”

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

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.

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.

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.”

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

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

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

DV/PST

Present

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.

Status of Female candidates-SI-2016 after normalization is applied

Score criteria Qualified

for

DV/PST

Absent

DV/PST

Present

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

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

(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.

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.

(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.

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

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.

(2007) 3 SCC 720.

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.

candidate ought to be in fifty “percentile”.

(d) At the Rule 15(b) stage, a specific and known target would be required to be

met by the candidate in order to enable him to reach the next level and as such

marks required at that stage ought to be “raw marks” and not any “normalized

score”.

(e) 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.

(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.

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

(2020)3 SCC 133

(2000)6 SCC 359

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

(2019) 4 SCC 376

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:

(1998) 7 SCC 625

10 (2005) 4 SCC 424

11 (2019) 6 SCC 270

“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:-

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.

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

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:

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.

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.

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

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;

(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

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.

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.

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:-

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.

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

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. 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.

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

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

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

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)

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.

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

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

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

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

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

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.”

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).

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

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

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.

(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

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

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

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

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

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

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

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

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

‘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

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

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:

‘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)

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’.

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.

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;

th January, 2022.

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