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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.8606-8610 OF 2015 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)  

NOS.8157-8161 OF 2014]

SUNIL KUMAR & ORS.ETC. ETC.      ...APPELLANTS

VERSUS

THE BIHAR PUBLIC SERVICE COMMISSION & ORS.ETC.ETC.   ...RESPONDENTS

WITH CIVIL APPEAL NO.8611 OF 2015

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)  NOS.11652 OF 2014]

WITH CIVIL APPEAL NO. 8612 OF 2015

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL)  NOS.17816 OF 2014]

J U D G M E N T

RANJAN GOGOI, J.

1. Leave granted.

2. Applications  for  Impleadment/  Intervention  are  

allowed.

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3. The  refusal  of  the  High  Court  to  interfere  with  the  

result  of  the  53rd to  55th Combined  (Mains)  Competitive  

Examinations,  2011  held  by  the  Bihar  Public  Service  

Commission (hereinafter referred to as “the Commission”) in  

May-June, 2012 is the subject matter of challenge in the  

present appeals.

4. The principal basis on which interference of the High  

Court  was  sought  is  that  in  finalizing  the  results  of  the  

Examination  the  Commission  had  moderated  the  marks  

awarded by the examiners who had scrutinized the answer-

sheets of  the candidates instead of scaling down the said  

marks which process was required to be undergone in view  

of  the  fact  that  the  examinations,  so  far  as  the  optional  

papers  are  concerned,  were  in  different  subjects.   It  is  

contended  that  the  course  adopted  was  contrary  to  the  

earlier  order of  the High  Court dated 26th August,  2011  

passed  in  a  proceeding  registered  and  numbered  as  

C.W.J.C. No.3892 of 2011 besides being contrary to the law  

laid down by this Court in Sanjay Singh and Another  Vs.

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U.P.  Public  Service  Commission,  Allahabad  and  

Another1.  

5. To  appreciate  the  first  contention  advanced  the  

operative part of the order dated 26th August, 2011 passed  

by the High Court in the earlier writ petition i.e. C.W.J.C.  

NO.3892 of 2011 may be reproduced hereinbelow:

“16. In the result,  the writ petition  is allowed. Respondent Nos. 2 and 3 would be  well-advised  to  frame  Rules,  may  be  after  supplanting the existing Rules with respect to  conduct  of  examinations,  incorporating  therein the system of moderation, as well as  the  system  of  scaling  of  raw  marks.   The  Commission shall  draw guidelines  from the  judgment  of  the  Supreme  Court  in  Sanjay  Singh  Vs.  U.P.PSC  (supra),  as  well  as  the  Rules  of  the  Union  Public  Service  Commission,  and  other  Public  Service  Commissions, etc. This Court will be pleased  if  the  entire  process  is  completed  within  a  period of six months from today.  Till then,  the judgment of the Supreme Court in Sanjay  Singh  (supra),  will  guide  the  affairs  of  the  Commission,  with  respect  to  all  the  examinations  where  the  candidate  has  the  choice of optional subjects, in so far as these  two concepts are concerned.”

1 (2007) 3 SCC 720

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6. It  is  contended  that  the  method  adopted  i.e.  

moderation is in clear breach of above directions issued by  

the High Court in its earlier order which is also between the  

same parties. No deviation, therefrom, by the Public Service  

Commission was permissible.

7. Insofar  as  the  decision  in  Sanjay  Singh (supra)  is  

concerned,  it  is  urged  that  this  Court  had  clearly  and  

categorically  held  the  system of  moderation  is  applicable  

only  to  cases  where  the  candidates  take  a  common  

examination i.e. where there are no optional subjects and all  

the papers in which the candidates appear are the same. In  

a situation where the subjects are different, according to the  

learned counsel, it has been held in Sanjay Singh (supra)  

that it is the scaling  method which  has  to be  upheld and  

in such situations the system of moderation would not be  

relevant.  As the Combined Civil Services Examination held  

by  the  Public  Service  Commission  involved  taking  of  

examination by the candidates in different subjects/papers,  

the  results  declared  are  vitiated  as  the  same  has  been

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finalized  by  following  the  moderation  method.   This,  in  

short, is the plea advanced on behalf of the appellants.

8. In reply, it is urged on behalf of the Commission that  

the format of the Civil Services Examination is covered by  

the Bihar Civil  Service (Executive Branch)  and the Bihar  

Junior Civil  Service (Recruitment) Rules, 1951.  Appendix  

'D'  thereto  lays  down  the  syllabus  for  the  combined  

competitive examination.  It is urged that apart from 4 (four)  

compulsory papers, the optional papers are divided into four  

categories/groups  i.e.  Groups  'A',  'B',  'C'  and  'D'.  While  

Group 'A' deals with Literature, Group 'B' deals broadly with  

Humanities subjects whereas Group 'C' deals with Law and  

Public  Administration;  Group  'D'  deals  with  Science  

papers/subjects.    Under  the  Rules,  apart  from  the  

compulsory papers, a candidate has to take three optional  

papers out of which not more than two papers can be from  

any  one  single  group.   It  is  pointed  out  that  the  above  

position must be kept in mind while scrutinizing the action  

taken by the Commission after the High Court had passed  

the order dated 26th August, 2011 in C.W.J.C. No.3892 of

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2011. It is urged that after the said order was rendered the  

Commission had sought information from the Union Public  

Service Commission as well  as from certain  State Public  

Service Commissions like Karnataka and Maharashtra.  The  

entire  issue  including  the  information  received  from  the  

Union  Public  Service  Commission  and  the  State  Public  

Service Commissions, as referred to above, was discussed in  

detail in a meeting of the Commission held on 15th January,  

2013 and a resolution was adopted that for evaluation of  

the  answer-sheets  of  the  Combined  Competitive  

Examination so as to achieve uniformity in the results, the  

following procedure would be adopted.

“(i) The  Chief  Examiner  acts  as  a  coordinator  and  guide  for  the  Examiners working under him and  is  also  responsible  for  objectivity  and uniformity in evaluation done  by different Examiners.

(ii) Before  the  start  of  evaluation  of  any  subject/  paper,  the  Chief  Examiner/ Examiners shall hold a  in-depth,  detailed  and  minute  discussion  with  the  Examiners  with regard to all questions of the  question paper and with a purpose  of having uniformity in evaluation,

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a clear-cut standard of evaluation  shall  be  explained  with  regard  to  through and prescribed answer of  each  question  and  process  of  marking.

(iii) The  Chief  Examiner  shall  must  examine  all  answer-books  getting  marks  of  more  than  60%  (sixty  percent)  and  below  30%  (thirty  percent).  At least 15% of evaluated  answer-books  shall  be  examined  by him.  

8.    After due consideration of above facts,  it  is the opinion of the Commission that  the  uniformity  in  evaluation  has  been  ensured  by  adopting  the  method  of  moderation  in  the  evaluation  of  answer- books of different subjects/papers of 53rd  to 55th Combined Joint (Main) Competitive  Examinations.  Therefore,  further  actions  be  taken for  publication of  result  of  the  said examinations.”

9. It may be also pointed out in this regard that the gist  

of  the information received from the Union Public Service  

Commission and the State Public Service Commissions have  

been recorded in the said resolution which is,  inter alia,  to  

the effect that neither the Commission nor the Karnataka or  

Maharashtra Public  Service  Commissions had adopted or

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adopts the system of scaling.

10. Insofar  as  the  order  of  the  High  Court  dated  26th  

August, 2011 in C.W.J.C. NO.3892 of 2011 is concerned, it  

is pointed out that with regard to non-implementation of the  

said directions a contempt petition was filed before the High  

Court  which  was  dismissed  by  order  dated  16th October,  

2012.  It is urged that on a cumulative consideration of the  

format  of  the  examination;  the  practice  followed  by  the  

Union Public Service Commission and different State Public  

Service  Commissions  and  other  relevant  facts  the  Bihar  

Public  Service  Commission,  by  its  resolution  dated  15th  

January, 2013, had taken a conscious decision details of  

which have  been extracted above.   The Commission also  

specifically denies that this Court in Sanjay Singh (supra)  

had laid down any principle of law to the effect that in a  

public examination involving different subjects the scaling  

method has to be necessarily adopted to bring uniformity in  

the results.  It is pointed out that this Court had merely  

observed that scaling is one of the available methods which  

could  be  applied  in  such  situations  i.e.  where  the

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examination is in different subjects.  It is also pointed out  

that  in  Sanjay  Singh (supra)  the  difficulties  and  

preconditions necessary in the practical application of the  

principle of  scaling down had also been noticed.  On the  

basis of the said facts, it is submitted that there will be no  

scope  for  this  Court  to  understand  that  any  binding  

principle,  direction  or  guidelines  has  been  laid  down  in  

Sanjay Singh (supra) so as to bind the Commission to any  

specific  course  of  action  while  conducting  a  public  

examination,  the  format  of  which  prescribes  different  

subjects.

11. It  is further contended on behalf  of  the Commission  

that being an autonomous body the Commission would be  

authorized and competent to take its independent decision,  

of  course,  having  due  regard  to  judicial  directions  and  

pronouncements and so long such decisions are taken bona  

fide  and are  not  arbitrary  the  scope of  judicial  review to  

scrutinize  the  decisions  of  the  Commission  would  be  

circumscribed.  In this regard it  is also pointed out that,  

admittedly,  it  is   not  the  case  of  the  appellants  –  writ

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petitioners   that    any  mala fide   is  attributable  to  the  

Public Service Commission in the conduct of  examination  

and the declaration of the results.  

12. 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  Singh (supra)  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 scrutinize the decisions taken by another  

constitutional authority i.e. the Public Service Commission  

in the facts of the present case.   

13. Before adverting to the aforesaid issue we may briefly  

indicate our views with regard to the order of the High Court

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dated 26th August, 2011 in CWJC No. 3892 of 20911 on the  

basis of which the action of the Commission is sought to be  

faulted.  Reading  the  operative  directions,  reproduced  

hereinabove, we fail to find any direction of the High Court  

which would bind the Commission to any particular course  

of  action.   There is  sufficient  discernible  flexibility  in the  

said order leaving it open for the Commission to modulate  

its  action  as  the  facts  surrounding  the  particular  

examination(s) that is involved may require.   

14. We have read and considered the judgment in Sanjay  

Singh (supra).  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 (05) 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 Rules which governed  

the selection did not permit the scaled down marks to be

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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:

“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,  normalized  equipercentile  method  are  some  of  the  recognized methods for scaling.” (Para 24)

It was furthermore observed:

“Scaling   process,  whereby  raw  marks  in  different  subjects  are  adjusted  to  a  common  scale,  is  a  recognized  method  of  ensuring  uniformity inter se among the  candidates who  have taken examinations in different subjects,  as,  for   example,  the  Civil  Services  Examination.” (Para 25)

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15. After  holding  as  above,  this  Court,  on  due  

consideration  of  several  published  works  on  the  subject,  

took note of the preconditions, the existence or fulfillment of  

which,  alone,  could  ensure  an  acceptable  result  if  the  

scaling  method  is  to  be  adopted.  As  in  Sanjay  Singh  

(supra) 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 :

“45. We may now summarize 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.

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(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).”

16. 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:

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“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.” (Para 46)     

17. In  Sanjay  Singh (supra)  an  earlier  decision  of  this  

Court approving the scaling method i.e. U.P. Public Service  

Commission Vs.  Subhash Chandra Dixit2  to  a  similar  

examination  was  also  noticed.    In  paragraph  48  of  the  

judgment  in  Sanjay  Singh (supra)  it  was  held  that  the  

scaling system adopted in Subhash Chandra Dixit (supra)  

received this Court's approval as the same was adopted by  

the Commission after an indepth expert study and that the  

approval of the scaling method by this Court in  Subhash  

Chandra Dixit (supra) has to be confined to the facts of  

that case.  

18. Finally, in paragraph 51 of the report in Sanjay Singh  

(supra)  the  Court  took  note  of  the  submission  made  on  

behalf of the Commission that it  is not committed to any  

2 (2003) 12 SCC 701

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particular  system  and  “will  adopt  a  different  or  better  

system if the present system is found to be defective”.

19. In  Sanjay Singh (supra)  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  analyze 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. (Paras 45 and 46)

20. The entire of the discussion and conclusions  in Sanjay

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Singh (supra)  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 Singh (supra) 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 Singh (supra) 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

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the examination in question had resulted in unacceptable  

results.  Sanjay  Singh  (supra) 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  

Singh (supra)  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.

21. 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

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singular  process  or  by  a  strait  jacket  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 Singh (supra).  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

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have to be understood to be, normally, limited to instances  

of arbitrary or malafide exercise of power.   

22. To revert, in the instant case, we have noticed that the  

contempt  proceedings  against  the  Public  Service  

Commission for violation of order dated 26th August, 2011  

in  C.W.J.C.  NO.3892  of  2011  had  failed.   We  have  also  

noticed  that  the  Public  Service  Commission  made  all  

attempts  to  gather  relevant  information  from  the  Union  

Public Service Commission and other State Public Service  

Commissions to find out the practice followed in the other  

States.  The information received was fully discussed in the  

light of the particulars of the examination in question and  

thereafter a conscious decision was taken by the resolution  

dated  15th January,  2013,  details  of  which  have  been  

already extracted.  In the light of the above and what has  

been found to be the true ratio of the decision in  Sanjay  

Singh (supra), we cannot hold that in the present case the  

action  taken  by  the  Bihar  Public  Service  Commission  

deviates either from the directions of the High Court (dated  

26th August,  2011 in  C.W.J.C.  No.  3892 of  2011)  or  the

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decision of this Court in  Sanjay Singh (supra).  Also, the  

absence of any plea of mala fide and the uniform application  

of  the  principles  adopted  by  the  Commission  by  its  

resolution dated 15th January, 2013 would lead us to the  

conclusion that  the  present  would not  be  an appropriate  

case  for  exercise  of  the  power  of  judicial  review.   The  

absence  of  reasons in  the  aforesaid  resolution,  on which  

much stress  has  been laid,  by itself,  cannot  justify  such  

interference  when  the  decision,  on  scrutiny,  does  not  

disclose any gross or palpable unreasonableness.   

23. On the aforesaid conclusions that we have reached we  

have to dismiss the appeals. We, therefore, do not consider  

it  necessary to go into the question as to whether it  was  

necessary  for  the  appellants  to  implead  the  selected  

candidates as party respondents to the present proceedings,  

an issue on which elaborate arguments have been advanced  

and several precedents have been cited at the bar.  For the  

same  reasons  the  weighty  arguments  advanced  by  both  

sides on the power of  the Court to mould the relief  in a  

given  case  will  have  to  await  consideration  in  a  more

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appropriate case.

24. Consequently and in the light of the above, the appeals  

are dismissed, however, without any order as to cost.   All  

interim orders are vacated.  

.................................,J. (RANJAN GOGOI)

..........…....................,J.                                                     (N.V. RAMANA)

NEW DELHI OCTOBER 14, 2015.