REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) No. 565 OF 2019         

PRANAV VERMA & OTHERS …..PETITIONERS

                                                            VERSUS

THE REGISTRAR GENERAL OF THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH & ANR.

…...RESPONDENTS

WITH

WRIT PETITION (CIVIL) NO. 617 OF 2019

AND

WRIT PETITION (CIVIL) NO. 651 OF 2019

JUDGMENT

These Writ Petitions under Article 32 of the Constitution have been filed

at the instance of more than 90 candidates challenging the entire selection

process and evaluation method adopted in the Main (Written) Examination of

Civil  Judge  (Junior  Division)  [herein  referred  to  as  “Main  Exam”]  in  the

Haryana Civil Service (Judicial Branch) Examination – 2017 and seeking to

quash the result declared on 11.4.2019 along with the directions to get all the

papers  of  the  Main  Exam  of  the  petitioners  to  be  re-evaluated  by  an

Independent Expert  Committee, besides the constitution of  an Independent

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Judicial  Service  Commission  for  conducting  examinations  for  selection  of

Lower Judicial Officers.  

Factual Background

2. Pursuant to the Notification-cum-Advertisement No. 6 of 2016 published

on  20.03.2017  [herein  after  referred  to  as  the  “Original  Notification”]  for

recruitment  to  109  posts  of  Civil  Judge  (Junior  Division)  in  Haryana  Civil

Service (Judicial Branch) – 2017, Preliminary Examination was conducted on

16.07.2017. However, on account of question paper-leak, the High Court of

Punjab & Haryana scrapped the said examination on 13.09.2017. Thereafter,

107 posts were re-notified on 27.08.2018, out of which 75 were meant for

General  Category  and  the  remaining  32  were  earmarked  for  Scheduled

Castes,  Backward  Classes  (a),  Backward  Classes  (b),  Economically

Backward  Persons  in  General  Category,  Ex-Service  Men  and  Physically

Handicapped Persons of Haryana State.

3. The  examination  was  conducted  in  accordance  with  provisions  of

Punjab Civil Services (Judicial Branch) Rules, 1951 as applicable to the State

of Haryana and as amended from time to time including vide notification no.

GSR1/Const./Art.234  &  309/2017  dated  09.01.2017.  This  examination

comprised of three stages –

(I) Preliminary Examination

(II) Main Examination

(III) Viva Voce  

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4. Marks obtained in the Preliminary Examination were not to be counted

towards final results. The purpose was solely to shortlist the candidates for the

Main  Exam.  Candidates  equal  to  10  times  the  number  of  vacancies

advertised, were shortlisted in order of their merit in the respective categories

to enable them to sit in the Main Exam. If two or more candidates at the last

number got equal marks, then all of them were considered eligible to sit for the

Main Exam, warranting the corresponding increase in the stipulated ratio.

5. The Main Exam consisted of five papers – Civil Law – I, Civil Law – II,

Criminal Law, English and Hindi. The first four papers were for 200 marks and

Hindi  was  for  100  marks.  In  order  to  qualify  for  viva-voce examination,  a

candidate  is  required  to  secure  a  minimum of  33% marks  in  each of  the

written exam and an aggregate of minimum 50% marks in all five papers [45%

for reserved category]. It is pertinent to note that viva-voce is also a part of the

Main Exam and treated as the sixth paper of 200 marks. No minimum marks

are prescribed for viva-voce as per the Rules. The candidates equivalent to

three times of the advertised posts, who qualify in the written Exam are called

strictly in order of merit to appear for the viva-voce. Marks obtained in the five

papers are consolidated with the marks obtained in Viva Voce and accordingly

a final merit list is prepared.

6. Preliminary Examination pursuant to the re-notified vacancies was held

on 22.12.2018 and its result was declared on 21.01.2019. Main Exam was

held from 15.03.2019 to 17.03.2019.  Results of the Main Exam were declared

on 11.04.2019 wherein only 9 candidates (6 of General Category and 3 of

Reserved Categories) were declared qualified and found fit for the Viva Voce.

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Complete details of the number of candidates who appeared/qualified in each

stage of the selection process are as follows:–

Candidates appeared in Preliminary Examination 14301 Candidates qualified for Main Exam 1282 Candidates appeared in Main Exam 1195 Candidates found fit for Viva Voce 9

(6+3)

7. Aggrieved by their exclusion from amongst the candidates qualified for

viva voce and contending that the entire selection process is unjust, unfair,

arbitrary and violative of Article 14 of the Constitution, the Petitioners have

approached this Court and sought indulgence in light of the followings:  

a. As per  the  result  declared,  only  0.702% candidates  managed to

pass the Main Exam and the rest 99.298% failed. The explanation

given for this was that no other candidate could secure a minimum

of 33% in each subject and an aggregate of 50% in all five (45% for

reserved category).  

b. Information  obtained  through  RTI  discloses  that  there  was  no

marking  criteria  or  model  answer  key  for  evaluation  of  answer

scripts  of  the  Main  Exam.  Performance  of  the  candidates  solely

depended on the discretion of the examiner(s). Further, no principles

governing grace marks were available.  

c. The High Court has provided an ineffective and infructuous remedy

of paid re-checking without the disclosure of marks of  candidates

who had not qualified.

8. This Court on 29.04.2019 directed the Registrar General  of the High

Court to be present in person along with answer scripts of all the candidates

who  appeared  in  the  Main  Exam.  On  03.05.2019,  having  considered  the

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grievances of  the Petitioners,  Hon’ble Mr.  A.K. Sikri,  J.,  a former Supreme

Court Judge was requested to look into some of the answer scripts of the

Main Exam to make an assessment whether the evaluation undertaken should

be accepted by the Court. On 31.07.2019, Justice Sikri, after a deep insight

and  thorough  evaluation  of  the  answer  scripts  gave  his  report  along  with

valuable suggestions of paramount importance.

Report by Hon’ble Justice (Retd.) A. K. Sikri dated 31.07.2019

9. Justice  Sikri  has  evaluated  the  selection  process  as  well  as  the

evaluation method used in the Main Exam and opined under different heads

as follows:

9.1 Selection Process – It  is  observed that the selection process is

prima facie faultless.  The Co-ordinators  of  the  exam were  highly

qualified persons i.e. Vice Chancellors of National Law Schools or

very  senior  professors,  who  provided  the  question  bank  to  the

Recruitment Committee. On this basis, the Recruitment Committee

formulated the question paper(s) for the Main Exam. Examination

Centre-in-charge handed over answer scripts of 1195 candidates in

sealed iron boxes to the Registrar-Recruitment. These iron boxes

were  kept  under  strict  surveillance  round  the  clock.  Also,  roll

numbers were concealed on the answer sheets before evaluation.

Many other adequate security measures were also ensured.

9.2 Evaluation Method –  To make an assessment on the evaluation

method adopted in the Main Exam, Justice Sikri randomly selected

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scripts  of  5  candidates  who  had  qualified  the  exam  and  of  5

petitioners. These answer scripts had been provided to him in Delhi

under strict  security.  Further,  to ensure transparency,  he checked

answer sheets of some other candidates who had not qualified the

Main Exam (other  than petitioners)  for  which he visited the High

Court  of  Punjab  &  Haryana  on  two  occasions-  24.05.2019  and

11.06.2019.

9.3 The purpose to evaluate all the scripts was to compare the marks

given to the qualified candidates with those who did not qualify by

going through the quality of their answers. He also had a look at the

list of marks obtained by all the candidates.

9.4 Observations :

Justice Sikri in his report has observed that the evaluation done for

Criminal  Law,  English  and  Hindi  papers  was  appropriate.  He

identified the main problem in Civil Law-I paper and found that there

were  18  questions  in  total  in  this  paper  and  all  of  them  were

compulsory.  Total time for finishing the paper was 3 hours i.e. 180

minutes. He made an assessment that if 27 minutes are taken out

for  reading  and  understanding  the  questions  (1.5  minute  per

question), then the candidate was left with 8.5 minutes to answer

each  question.  The  questions  were  descriptive  in  nature.  It  is

pertinent to note that the three law papers were evaluated by fifteen

Evaluators  by  allotting one question to  one Evaluator.  Thus,  one

question was evaluated by one Evaluator only in all answer scripts

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and  in  this  manner  each  answer  script  was  examined  by  many

Evaluators. He, thus, came to the following conclusions:

 Marking of Civil Law- I was strict. Evaluators seemed to expect long

answers  for  each question  covering  all  aspects  in  detail,  without

recognizing  that  candidates  barely  had  any  time.  Even  the

candidates who covered all aspects in brief were not awarded good

marks.

 Highest marks in Civil Law- I were 95 out of 200 i.e. 47.5%. Even,

this candidate deserved more marks.

 The method of getting answer scripts evaluated by many Evaluators

was intended to attain uniformity.  However,  a major  repercussion

was that this left the Evaluators with no opportunity to see overall

performance of the candidates and take a holistic view. Evaluators

would have had a realistic expectation in mind if they checked the

complete answer scripts as opposed to checking only one answer.

 Paper was not difficult but too lengthy. Most of the questions were

descriptive,  some  replica  of  bare  provisions.  Examiner  expected

long answers,  but the questions were too many and the marking

was extremely strict.

 For  Civil  Law –II,  –  attributes  pointed  in  Civil  Law –  I  were  not

present. Though, it was noted that suitable marks were not awarded

even  when  answers  were  perfect.  There  was  marginally  strict

marking.

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9.5 Suggestions  

Justice  Sikri  has  unambiguously  opined  that  the  situation  can  be

remedied by moderating marks so that more students can qualify the

Main  Exam  for  appearing  in  Viva  Voce.  A total  of  311  candidates

secured more than 33% marks in Civil Law-I Paper but they could not

secure  aggregate  50%  marks  which  impacted  their  final  result.

Accordingly,  he  has  after  due  deliberations  suggested  the  following

three alternatives: –

 Alternative I – 20 Grace Marks i.e. 10% be given in Civil Law –I.

Using this,  28 more candidates (15 General  +  13 Reserved)  will

qualify for Viva Voce making the total number of qualified candidates

to 37.

 Alternative II – 20 Grace Marks i.e. 10% be given to all candidates

in Civil Law-I paper and 10 Grace Marks i.e. 5% be added in marks

secured by all  candidates in  Civil  Law-II paper.  Cumulatively,  30

marks  in  total  will  increase.  Using  this,  60  (33  General  +  27

Reserved) candidates will get through to Viva Voce taking the tally of

qualified candidates to 69.

 Alternative  III –  Moderation  be  done  by  giving  35  marks  to  all

candidates. This will  add 42 General Category candidates and 23

Reserved Category candidates to the existing number of 9, thereby

making a total of 74.  

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In  the  concluding  remarks,  Justice  Sikri  has  recommended  use  of

Alternative I. But keeping in mind availability of large scale vacancies, he

has  also  suggested  other  two  alternatives  by  virtue  of  which  more

candidates can qualify for viva-voce.

Contentions of Petitioners  :

10. Learned  Counsel  for  the  Petitioners,  Mr.  Prashant  Bhushan  at  the

outset has pointed out an inadvertent clerical error in the report of Sikri, J.

regarding  the  number  of  vacancies  allocated  for  general  and  reserved

categories, as per the re-notified advertisement. On merits, his submissions

may be summarized as follows:-

10.1 First Alternative sought by the petitioners is re-evaluation of both

the Civil  Law-I and Civil  Law-II papers by an Independent Authority as

there  was  strict  marking  in  these  papers.  For  this,  the  petitioners  lay

emphasis on the standards laid down in  CPIL vs Registrar General of

High Court of Delhi1.  

10.2 The  Second Alternative submission is that 50 grace marks may

be awarded to all the candidates, so the number of candidates qualified

for Viva Voce would increase to 150-160 (nearly 1.5 times the number of

vacancies available). It is highlighted that no appointment had been made

in Haryana Judicial Service since 2014.  

1 (2017) 11 SCC 456

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10.3 Shortlisting of sufficient candidates for appearing in viva-voce is

desperately needed so that no seat is left vacant keeping in mind that

many  of  the  candidates  have already  been selected  for  various  other

State Judicial  Services.  31 petitioners have already been appointed in

different Judicial  Services and many more would have been appointed

from the 1195 candidates who appeared in the Main Exam. It  can be

safely  inferred  that  some  of  the  candidates  are  likely  to  drop  out  of

Haryana Judicial Service Interview process or appointment.  

10.4 The  petitioners  oppose  the  idea  of  conducting  a  fresh

examination because it will only add to the hardships of the candidates,

more so when they have already appeared twice in the said process.  

10.5 The  petitioners  have  highlighted  the  criteria  of  obtaining  in

aggregate a minimum of 50% marks in six papers (including five papers

of Main Exam and sixth- viva-voce) and expressed their apprehension of

scoring low marks in viva-voce due to which they would not be able to

secure  the  minimum  aggregate  of  50%  marks  to  meet  the  eligibility

criteria.  The  reason  of  apprehension  is  that  the  same  Recruitment

Committee  constituted  by  the  Punjab  and  Haryana  High  Court  has

awarded only 8 to 18 marks to a large number of candidates even though

they have secured goods marks in the written examinations. This Court,

therefore, should employ a moderation technique by which candidates

who deserve the seat can get it.

10.6 Seventy-four candidates who will  become successful to appear

for Viva Voce as per Alternative III suggested by Sikri, J. would only touch

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the bare minimum marks i.e. 450 marks out of  900 and if  they fail  to

secure 50% marks in Viva Voce then the entire exercise would become

futile.

10.7 The petitioners, thus, suggest moderation and scaling scientific

techniques to remove variation caused by factors like multiple examiners,

multiple optional subjects with varying difficulty levels or different difficulty

levels  of  the  mandatory  subjects  for  all  candidates.  These  methods,

according  to  them,  are  used  by  the  UPSC  for  administrative

appointments and UPPSC for judicial recruitments.

10.8 Petitioners and other candidates have immensely suffered in the

last  5  years  in  anticipation  of  the  exam dates  and fair  selection  and

appointments.  They could not  engage themselves in any other career

options due to the constant uncertainty.

10.9 The names and subject marks obtained by each candidate should

be disclosed in a consolidated list after the Main Exam and before the

Viva  Voce.  Similar  procedure  is  followed  in  Delhi,  Rajasthan  etc.  to

ensure transparency.

10.10  The timelines given in  Malik  Mazhar  Sultan vs.  U.P.  Public

Service Commission2 should be strictly adhered to. Respondents should

conduct the next examination cycle in a time bound manner.

11. S/Shri  Nidesh  Gupta  and  Gurminder  Singh,  Senior  Advocates

representing  the  Punjab  and  Haryana  High  Court,  on  the  other  hand,

strenuously opposed the petitioners’ claim and urged that since Justice Sikri

2 (2008) 17 SCC 703

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has not found any fault or illegality in the selection process which has been

conducted in most fair and impartial manner under strict adminisrative vigil,

there is no necessity for this Court to interfere with the selection process while

exercising the power of judicial review. They urged that the standards of the

examination be not diluted by accepting the suggestions given by Justice Sikri

in his report and the appropriate recourse would be to re-advertise the vacant

posts and make selection afresh.

Issues for consideration

12. On a consideration of the rival submissions and on appreciation of the

report submitted by Justice Sikri, it appears that the following questions arise

for our consideration:

(i) Whether  selection  process  and  evaluation  method  is  unjust,

arbitrary and in violation of Article 14 of the Constitution?

(ii) Whether  moderation  of  marks  (grace  marks)  is  needed in  the

facts and circumstances of the present case?

(iii) Whether  re-valuation  of  Civil  Law-I  and  Civil  Law-II  papers  is

required by an Independent Expert Committee?

(iv) Whether  the  marks  obtained  in  the  Main  Exam  be  disclosed

before the viva-voce is conducted?

Analysis of the Issues:

Re: Issue 1

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13. The Petitioners contended that the evaluation has been done without

any marking criteria,  it  lacks uniformity and is in  contravention of  the view

taken by this Court in the following decisions –  

 Sanjay Singh & Anr vs U.P. Public Service Commission3   Prashant Ramesh Chakrawar vs UPSC & Ors4

 Sujasha Mukherji vs High Court of Calcutta5

 CPIL vs Registrar General of the High Court of Delhi6

13.1    In Sanjay Singh (supra), this Court analytically went into inner

depth of the scheme of Examination and laid down guidelines regarding

moderation of marks in case of judicial services examination.  It was,

thus, held:  

“23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer-scripts.  Where  the  number  of  candidates  taking  the examination are limited and only one examiner (preferably the paper- setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts  evaluated  by  the  same  examiner.  It,  therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting  as  the  Head  Examiner.  When  more  than  one  examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer-scripts allotted to him for valuation. Each examiner will apply  his  own  yardstick  to  assess  the  answer-scripts.  Inevitably therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of  marks  awarded,  thereby  affecting  the  merit  of  individual candidates. This apart, there is 'Hawk-Dove' effect. Some examiners are  liberal  in  valuation  and  tend  to  award  more  marks.  Some examiners  are  strict  and  tend  to  give  less  marks.  Some may  be moderate and balanced in awarding marks. Even among those who are  liberal  or  those who are  strict,  there  may be  variance in  the degree of strictness or liberality. This means that if the same answer- script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a

3 (2007) 3 SCC 720 4 (2013) 12 SCC 489 5 (2015) 11 SCC 395 6 (2017) 11 SCC 456

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strict  examiner  and  a  mediocre  answer-script  goes  to  a  liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script.  In  other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner.  This  is  known  as  'examiner  variability'  or  'Hawk-Dove effect'.  Therefore,  there  is  a  need  to  evolve  a  procedure  to ensure uniformity inter se the Examiners so that the effect of 'examiner  subjectivity'  or  'examiner  variability'  is  minimised. The  procedure  adopted  to  reduce  examiner  subjectivity  or variability  is  known  as  moderation. The  classic  method  of moderation is as follows:

(i)  The  paper-setter  of  the  subject  normally  acts  as  the  Head Examiner  for  the  subject.  He  is  selected  from  amongst  senior academicians/scholars/senior civil servants/Judges. Where the case of  a  large  number  of  candidates,  more  than  one  examiner  is appointed and each of them is allotted around 300 answer-scripts for valuation.  

(ii)  To  achieve  uniformity  in  valuation,  where  more  than  one examiner is involved, a meeting of the Head Examiner with all the examiners  is  held  soon  after  the  examination.  They  discuss thoroughly  the  question  paper,  the  possible  answers  and  the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to  complete the valuation of answer scripts.  But this by itself  does not  bring about  uniformity  of  assessment inter  se the examiners. In spite of the norms agreed, many examiners tend to deviate  from the  expected  or  agreed  norms,  as  their  caution  is overtaken by their propensity for strictness or liberality or eroticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary.

(iii)  After  the valuation is  completed by the examiners,  the Head Examiner  conducts  a  random  sample  survey  of  the  corrected answer scripts to verify whether the norms evolved in the meetings of  examiner  have actually  been followed by  the  examiners.  The process of random sampling usually consists of scrutiny of some top-level  answer  scripts  and  some  answer  books  selected  at random  from  the  batches  of  answer  scripts  valued  by  each examiner.  The  top-level  answer  books  of  each  examiner  are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average  percentage  of  marks,  the  highest  and  lowest  award  of

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marks etc. may also be prepared in respect of the valuation of each examiner.)

(iv) After ascertaining or assessing the standards adopted by each examiner,  the  Head  Examiner  may  confirm  the  award  of  marks without any change if the examiner has followed the agreed norms, or  suggest  upward  or  downward  moderation,  the  quantum  of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure  of  uniformity  inter  se  the  examiners,  the  awards  are moderated  as  per  the  recommendations  made  by  the  Head Examiner.

(v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner,  for  which it  is  not feasible to have any standard moderation, the answer scripts valued by such examiner are revalued either by the Head Examiner or any other Examiner who is found to have followed the agreed norms.

(vi) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the Examiners. In such a situation, one more level of Examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners,  in turn, is checked by a Chief Examiner to ensure proper results.

The above procedure of 'moderation' would bring in considerable uniformity and consistency.  

I  t should be noted that absolute uniformity or consistency in valuation  is  impossible  to  achieve  where  there  are  several examiners  and  the  effort  is  only  to  achieve  maximum uniformity.”                                                                              [Emphasis applied]

13.2 The guidelines  laid  down in  Sanjay Singh (supra)  have been

followed in the other three cases cited on behalf of the petitioners viz.

Prashant Ramesh Chakrawar (supra), Sujasha Mukherji (supra) and

CPIL (supra).

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14. In  the  instant  case,  Justice  Sikri  critically  examined  the  selection

process as well as the evaluation method and it is explicit from his report that

the procedure of evaluation was ‘uniform’. We are of the view that evaluation

done by multiple evaluators i.e.  one Evaluator examining and marking one

question  in  all  the  mark-sheets,  ensures  uniformity  and  prevents  chance

grading. Every candidate’s answers are marked on same parameters by the

same examiner.  There  can  possibly  be  no  other  better  method to  ensure

uniformity  in  evaluation.  The  petitioners  have  stated  that  as  per  the

information received via RTI no model ‘answer key’ was present.   It  gives

more credance to the afore-stated method of evaluation as no model ‘answer

key’ ought to be devised for the Main Exam, the purpose whereof is not to just

assess  the  knowledge  of  candidates  but  also  to  evaluate  their  analytical

ability.   In  the  present  case,  there  was  no  Examiner  Variability,  therefore,

Justice Sikri has very aptly remarked that, “this was well intended move to

attain uniformity in evaluation”. This method ensures equal level play field for

all candidates. The only setback was lack of holistic view and lack of realistic

expectations in the examiner’s mind, for which there are adequate remedies

as discussed in the later part of this order.

15. The marking criteria and evaluation method was strict but it was so for

everyone. This was may be for the reason that one Evaluator checked one

answer in each script and in this manner the entire lot of scripts were marked.

The Evaluators failed to keep a pragmatic view that source of recruitment was

likely to be the same in a fresh attempt also and that candidates had only 8.5

minutes to answer each question and time constraint did not allow them to

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give  their  best  of  performance.  Even  those  candidates  who  covered  all

aspects  briefly  were  not  awarded  proper  marks.  Unlike  the  hypothetical

illustration given in  Sanjay Singh’s case (supra),  it  was not a case where

some  candidates were  subjected  to  strict  marking  and  others  had  an

advantage of lenient marking, so as to draw an inference that the evaluation

method was discriminatory or arbitrary.  

16. It has been found as a matter of fact that the officials and officers of the

High Court ensured adequate security measures such as keeping the answer

scripts  in  iron  boxes  under  round-the-clock  security  and  CCTV  cameras.

Hence, it is just and fair to hold that no discriminatory or malafide practice was

undertaken while conducting the exam or its following processes.

Re: Issue II  

17. Considering  that  the  marking  was  strict  but  not  discriminatory,  the

remedy of moderation of marks, in order to remove the variation caused by

multiple examiners  and dearth  of  time,  is  the only  effective,  equitable and

efficasious solution. The petitioners have stated and rightly so that as per the

RTI, there are no rules governing grace marks. They have suggested that any

appropriate scientific technique like scaling, or moderation can be adopted in

this  case,  as  is  done  by  Union  Public  Service  Commission  (UPSC)  for

administrative appointments and UP Public Service Commission (UPPSC) for

judicial recruitments.

18. This Court in Sanjay Singh (supra) considered the suitability of scaling

method in depth but declined to approve the same for Judicial Examinations

observing  as follows:

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“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.”

[Emphasis added]

19. This Court thus considered the viability of scaling and moderation for

Judicial  Services Examinations and held that  use of  Scaling is appropriate

only when there is differentiation amongst subjects opted by candidates. This

does not apply in the cases where subjects are uniform. Further, moderation is

a more viable technique so as to exclude the effect of examiner variability. In

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Sanjay Singh case (supra),  this Court  observed that,  “there is “reduced

valuation” by a strict examiner and “enhanced valuation” by a liberal

examiner. This is known as “examiner variability” or “hawk-dove effect”

… [P]rocedure of moderation would bring in considerable uniformity and

consistency. It should be noted that absolute uniformity or consistency

in valuation is impossible to achieve where there are several examiners

and  the  effort  is  only  to  achieve  maximum  uniformity.” (para  23) As

already  discussed,  there  was  no  examiner  variability  in  present  case  but

marking  was  strict  which  is  why  we  are  of  the  view  that  the  option  of

moderation deserves to be considered and applied.

20. We may also notice that moderation can be by the addition of marks (in

case of strict marking) and/or deduction of marks (in case of lenient marking).

In Taniya Malik vs. The Registrar General of Delhi High Court7, 100 posts

were  advertised  and  only  64  candidates  could  qualify  the  Main  Exam for

appearing in the Viva Voce. While considering the challenge to examination

process, this Court held that moderation cannot be applied for the reason that:

“This Court in Sanjay Singh (supra) has laid down moderation to be appropriate where there are multiple examiners of the same subject. It  has also been observed that where a number of candidates are limited and only one examiner will evaluate, it is to be assumed that there  will  be  uniformity  in  valuation.  That  is  only  where  several examiners evaluate the same subject. There is difference in average marks and range of marks awarded. There is a 'hawk-dove' effect. Some  examiners  are  liberal  and  they  award  more  marks;  some examiners are strict and they give fewer marks, the same may be moderated.  There  may  be  variance  in  degree  of  strictness  and liberality. It is in order to remove the subjectivity or variability, that the provision of moderation is adopted. It is not the situation in the instant case,  hence,  the  decision  in  Sanjay  Singh  (supra)  rather  than

7 (2018) 14 SCC 129

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buttressing negates the plea of moderation urged on behalf of the Petitioners.”

21. Taniya Malik’s case (supra) is distinguishable as it has been found as a

matter of fact in the instant case that the strict marking has caused severe

prejudice to the candidates and only 0.702% of them could qualify as against

107 vacancies. The candidates have been suffering for last five years.  It is,

therefore,  inevitable  to  do  complete  justice  and  invoke  the  powers  under

Article 142 of the Constitution and consequently award grace marks to the

candidates so that more candidates, who are otherwise no less meritorious,

get an opportunity to appear for  the viva-voce.  The question is how many

grace marks should be awarded and what should be the criteria followed.

22. Justice Sikri in his concise but scholarly authored report has suggested

three alternatives for awarding of grace marks; First Alternative is awarding 20

marks in Civil Law-I; Second Alternative is awarding 20 marks in Civil Law-I

and 10 marks in Civil Law-II; and Third Alternative is awarding 35 marks in

aggregate. The Petitioners, on the other hand, have urged for awarding 50

grace marks keeping in view the fact that more candidates need to qualify for

107 vacancies. After going through the report of Justice Sikri, in this regards,

we deem it appropriate to adopt Alternative II of the Report, since the marking

in Civil Law-I and Civil Law-II both was strict. Marking of Civil Law-II was only

marginally strict. Equity can thus be well balanced by awarding 10 marks to

every candidate in Civil Law-II paper and 20 marks in Civil Law-I. The prayer

of the petitioners for addition of 50 grace marks is not found feasible, for the

moderation should also look reasonable.  We may hasten to add that it is not

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compulsory  for  the  High  Court  to  fill  all  vacant  posts,  even  if  suitable

candidates  are not available.

22. The  petitioners  have  failed  to  assign  any  well  founded  reason  for

seeking moderation of 50 grace marks, only on the apprehension that even

the candidates who secured good marks in written examinations were given

very low marks in viva-voce and the Committee has been awarding a meagre

8 to 18 marks, and hence they too will not be able to meet the eligibility criteria

of minimum 50% marks.

23. Firstly,  we may very  briefly  emphasise  the need of  viva-voce as  an

integral part of selection process for certain posts.  This Court in Lila Dhar v.

State of Rajasthan8, observed that  

“6. … [T]he written examination assesses the man's intellect and the interview test the man himself and “the twain shall meet” for a proper selection....  [I]n  the  case  of  services  to  which  recruitment  has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied...”

The viva-voce and Written Examination (Main Exam), thus, both have

their own importance in a selection process and it is for the interviewing panel

to decide how many marks be awarded to a candidate keeping in view his/her

performance in interview.  Secondly, the composition of Selection Committee

is the sole prerogative of Chief Justice of the High Court and this Court need

not venture into the issue which pertains to exercise of administrative power

(s) of the Chief Justice.  

Re: Issue III  

8 (1981) 4 SCC 159

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24. The  alternative  prayer  of  the  petitioners  for  re-evaluation  by  an

Independent Expert Committee is not worth acceptance. Firstly, for the reason

that these 107 posts are already lying vacant for a considerable long period

and  the  re-evaluation  would  further  delay  it.  Secondly,  Justice  Sikri  has

thoroughly  examined the fact  situation before recommending  the award  of

grace marks. Thirdly, there is no provision for re-evaluation in the Recruitment

Rules and any such direction would run counter to the mandate of this Court

in H.P. Public Service Commission v. Mukesh Thakur9, laying down that in

the absence of any provision under the statute or statutory rules/regulations,

the Courts should not generally direct re-evaluation.

25. The  above-cited  view  has  been  reiterated  by  this  Court  in  Pramod

Kumar  Srivastava v.  Bihar  Public  Service  Commission10 observing  as

under:

“7.  …  Under  the  relevant  rules  of  the  Commission,  there  is  no provision wherein a candidate may be entitled to ask for revaluation of his answer book. There is a provision for scrutiny only wherein the answer books are seen for the purpose of checking whether all the answers  given by  a  candidate  have been  examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer book. There is no dispute that after scrutiny no mistake was found in the marks awarded to the appellant in the General Science paper. In the absence  of  any  provision  for  revaluation  of  answer  books  in  the relevant  rules,  no  candidate  in  an  examination  has  got  any  right whatsoever to claim or ask for revaluation of his marks.    

[Emphasis added]”

26. The  Petitioners  have  relied  on  the  decision  in  Centre  for  Public

Interest  Litigation  vs  Registrar-General  High  Court  of  Delhi11 to

9 (2010) 6 SCC 759  10 (2004) 6 SCC 714  

11 (2017) 11 SCC 456

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substantiate their plea for re-valuation of answer scripts by an Independent

Expert  Committee.  However,  in  that  case  too  it  was  held  “if  the  suitable

candidates are not found, the employer is not obliged to fill up the posts.”  The

directions for revaluation were given only as a special case.  

Re: Issue IV

27. As regards the petitioners’ plea that marks of the Main Exam should be

disclosed before conducting viva-voce, we are of the considered opinion that

such a practice may not insulate the desired transparency, rather  will invite

criticism of likelihood of bias or favourtism.  The broad principles to be laid

down in this regard must be viewed keeping in view the selections for various

categories of posts by different Selecting Authorities, for such a self-evolved

criteria cannot be restrocted to Judicial Services only.  If the Members of the

Interviewing Boards are already aware of the marks of a candidate secured in

the Written Examination, they can individually or jointly tilt the final result in

favour or against such candidate.  The suggested recourse, thus, is likely to

form bias affecting the impartial evaluation of a candidate in viva-voce.  The

acceptance of the plea of the petitioners in this regard will also run contrary to

the authoritative pronouncement of this Court in  Ashok Kumar Yadav and

Others  v.  State  of  Haryana12.  As  the  written  examination  assesses

knowledge and intellectual abilities of a candidate, the interview is aimed at

assessing their overall intellectual and personal qualities which are imperative

to hold a judicial post. Any measure which fosters bias in the minds of the

interviewers, therefore, must be done away with.

12 (1985) 4 SCC 417

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28. For the reasons stated above, we allow these Writ Petitions in part with

the following directions:-

(i) The Punjab and Haryana High Court through its Registrar General is

directed to award 20 grace marks in Civil Law-I paper and 10 grace

marks in Civil Law-II paper to all the candidates of 2019 Examination

and prepare fresh results of the Main (Written) Examination of Civil

Judge (Junior Division) within two weeks and complete the selection

process within four weeks thereafter.

(ii) The entire selection process shall be completed in all respects before

15th February, 2020.

(iii) The left out vacant posts along with vacancies which have occurred

meanwhile  and  those  anticipated  within  next  six  months,  be

advertised as early as possible and be filled in accordance with the

timeline  prescribed  by  this  Court  in  Malik  Mazhar  Sultan  case

(supra).

29. All pending applications, if any, are disposed of in terms of the aforesaid

order.

……………………….. CJI.    (S. A. BOBDE)

 ………………………… J. (B.R. GAVAI)

…………………………. J. (SURYA KANT)

NEW DELHI DATED : 13.12.2019

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