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CASE NO.: Appeal (civil)  6172-6222 of 2005

PETITIONER: K. Channegowda and others                                             

RESPONDENT: Karnataka Public Service Commission and others.

DATE OF JUDGMENT: 06/10/2005

BENCH: B.P. Singh & Arun Kumar

JUDGMENT: J U D G M E N T  (Arising out of SLP (C) Nos.11589-11639 of 2003) WITH

CIVIL APPEAL NO.6313 OF 2005 (Arising out of SLP (C) No. 24322 of 2003)

Dr. K. Rameshwarappa                                                 \005 Appellant

Versus

Karnataka Public Service Commission and  another                                                            \005 Respondents

                       AND

CIVIL APPEAL NOS.6223-6312 OF 2005 (Arising out of SLP (C) Nos. 610-699 of 2004}

M. R. Ravi and others                                                \005 Appellants

Versus

Karnataka Public Service Commission and  Others                                                             \005 Respondents

B.P. SINGH, J.

       Special leave granted in all the matters.

       In this batch of appeals the common judgment and order of the High  Court of Karnataka at Bangalore dated October 11, 2002 has been assailed.   The matter relates to the conduct of competitive examination by Karnataka  Public Service Commission for recruitment to the post of Gazetted

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Probationers (Group ’A’ and ’B’ Posts).  Some of the unsuccessful  candidates approached Karnataka Administrative Tribunal with a grievance  that the competitive examination conducted by the Karnataka Public Service  Commission was not fair and impartial.  The manner in which the  examination was conducted and the evaluation of the answer scripts by the  examiners were suspect.  In particular allegations were made about the  favours shown to one K. Rameswarappa, the appellant in Civil Appeal   arising out of SLP ) No. 24322 of 2003 and two of his relatives who had  secured high positions and were ultimately selected.   

The Karnataka Administrative Tribunal by its judgment and order  dated February 6, 2002 allowed the applications filed before it, inasmuch as  it found certain irregularities committed in the conduct of the competitive  examination, and in particular favours shown to the aforesaid  Rameswarappa and some of his relatives.  The Tribunal ultimately directed  the Karnataka Public Service Commission to get all the answer scripts  evaluated afresh after appointment of fresh examiners in accordance with the  procedure contained in the order.  It also gave certain directions in regard to  the evaluation of the answer scripts and the declaration of the result.   

The Karnataka Public Service Commission filed writ appeals before  the High Court of Karnataka at Bangalore challenging the findings recorded  by the Administrative Tribunal and the ultimate order passed by it.   The  High Court after hearing the parties gave certain directions for the re- evaluation of some of the answer scripts, though not all.  The High Court  was of the view that having regard to the findings recorded by it, it was not  necessary to get all the answer scripts evaluated over again.  The judgment  and order of the High Court has been impugned in this batch of appeals.

       The appellants in the appeals arising out of SLP ) Nos. 11589 to  11639 of 2003 are the unsuccessful candidates who were not selected for  appointment.  They contend that the entire examination should have been  scrapped in view of the findings recorded by the Tribunal and the High  Court.

       The appellants in appeals arising out of SLP ) Nos.610-699 of 2004  are the successful candidates who were selected for appointment by the  Karnataka Public Service Commission on the basis of the declared result.   They contend that for no fault of theirs’ the answers scripts are sought to be  re-evaluated, particularly when the High Court was able to identify the  culprits and the beneficiaries of the irregularities committed in the  evaluation and moderation of the answer scripts.  They contend that apart  from the persons against whom a clear and categoric finding has been  recorded, there is no need to order fresh evaluation of the answer scripts in  15 optional subjects and also in general studies.       

       The appellant in the appeal arising out of SLP ) No. 24322 of 2003 is  one Dr. Rameshwarapppa against whom findings have been recorded by the  Karnataka Administrative Tribunal which have been affirmed by the High  Court.  He has challenged the findings recorded against him and has prayed  for setting aside the judgments and orders of both the Karnataka  Administrative Tribunal and the High Court.

       The facts of the case may be briefly noticed.

       On  February 4th, 1998 the Government of Karnataka sent requisition  to the Karnataka Public Service Commission for the selection of 415  candidates for appointment to the post of Gazetted Probationers (Group ’A’  and ’B’ posts).  Pursuant to the said requisition, the Karnataka Public  Service Commission issued an advertisement on March 9, 1998 inviting  applications.  As many as 85598 applications were received in response to  the said advertisement and out of them 79130 applications were found to  have been validly made by eligible candidates.  In accordance with the rules  for selection to the said posts, a preliminary examination was held followed

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by the main examination.  The preliminary examination was held on August  30, 1998 in which 56228 candidates appeared.  Result of the preliminary  examination was declared on November 16, 1998 and on the basis of the  aforesaid result 9857 candidates were found eligible to take the main  examination.  The main examination was held between April 9, 1999 and  May 3, 1999.  The answer scripts were evaluated between May 17, 1999 and  June 18, 1999.  On January 12, 2000 the result was declared and as many as  2397 candidates qualified for the personality test.  In the months of July and  August, 2001 the personality test was held and the provisional list of  selected candidates was declared on September 28, 2001.   

       In February, 2000 eight candidates who had failed in compulsory  papers of Kannada and/or English filed writ petitions before the High Court  alleging serious irregularities in evaluation of the answer scripts.  The writ  petition came up before a learned Single Judge of the High Court who by a  reasoned order dated March 21, 2000 referred the aforesaid writ petitions to  the Division Bench.   

       In the meantime 24 other candidates filed writ petitions before the  High Court.  Those writ petitions were also clubbed with writ petitions filed  by eight candidates earlier and another Writ Petition No. 7022 of 2000 filed  by another candidate.  Ultimately the Division Bench held that the writ  petitioners may seek remedy before the Karnataka Administrative Tribunal  and that writ petitions were not maintainable.  The High Court transferred all  the 33 writ petitions filed in the High Court to the Karnataka Administrative  Tribunal.  Nine other petitioners had directly approached the Karnataka  Administrative Tribunal.  In this manner 42 matters were heard and disposed  of by the Karnataka Administrative Tribunal vide its judgment and order  dated February 6, 2002.   

Aggrieved by the judgment and order of the Karnataka Administrative  Tribunal, the Karnataka Public Service Commission preferred writ petitions  before the High Court of Karnataka at Bangalore being Writ Petition Nos.  12548-12589 of 2002 which have been disposed of by the impugned  common judgment and order.   

       The Karnataka Administrative Tribunal concluded that the valuation  of the answer scripts could not be regarded as fair.  In the facts and  circumstances of the case no distinction could be made between answer  scripts validly valued and those not validly valued.  It was, therefore,  necessary that all the answer scripts should be re-evaluated.  Accordingly, it  directed the Karnataka Public Services Commission to get all the answer  scripts valued afresh by appointing examiners who are in no way interested  in the candidates taking the examination.  The examiners were to be  appointed after verifying their declaration that none of their relatives  specified in the format of the declaration was a candidate.  The Commission  was directed to erase all the code numbers and give fresh code numbers to  the answer scripts relating to the compulsory as well as the optional subjects.   It, further, directed that all answer scripts wherein more than 60% marks  were awarded must be valued by a set of two examiners.  In case there was a  difference exceeding 5% of the marks in evaluation by the two examiners,  the matter must be referred to the third examiner.  It also directed that  Karnataka Public Service Commission shall permit re-evaluation of answer  scripts of all those candidates who seek such re-evaluation within the time to  be specified, and on such payment as may be determined.  It further obliged  the Commission to furnish to all candidates marks obtained by them in all  the papers.

       The High Court, however, modified the directions of the Tribunal.  It  came to the conclusion that in the facts and circumstances of the case it was  not necessary to get all the answer scripts re-evaluated.  It directed  moderation/random review by the Head Examiner and Chief Examiner only  in regard to subjects where the same had not been adequately done earlier.   This had to be done in the manner suggested by the Public Service

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Commission in para (b) of its memo dated March 27, 2002 which reads as  follows :-

"\005..on the basis of random review of answer scripts  done in respect of answer scripts evaluated by each  Examiner average variation shall be arrived at.   Wherever the average variation is less than plus or  minus 20, general review of the marks awarded need  not be done.  However where the average difference is  plus or minus 20 or more the marks awarded by such  examiner shall be increased or deceased by that  average in respect of each of the answer scripts  evaluated by that Examiner.  In case the average  variation is less than plus or minus 20 but variation in  respect of individual answer scripts is plus or minus  20 or more those answer scripts would be subjected to  third valuation."

       The entire process of moderation was directed to be done under the  supervision of the Secretary of Karnataka Public Service Commission.  It  was left to the discretion of the Secretary of the Karnataka Public Service  Commission to have the moderation done either at a two tier level (Head  Examiner and Chief Examiner) or at only one level.  The Secretary of the  Karnataka Public Service Commission was directed to select and prepare a  fresh panel of Head/Chief Examiners for this purpose.  The process of  interviews and selection carried out during the pendency of the applications  before the Karnataka Administrative Tribunal was declared to be illegal.   The Commission was further directed to re-evaluate the compulsory papers  (English and/or Kannada) of those candidates who had approached the High  Court or Tribunal for such re-evaluation before the date of judgment.  After  re-evaluation and moderation as directed, the Commission shall prepare the  list of candidates to be called for personality test in accordance with the  Rules.  

       It would thus be seen that whereas the Karnataka Administrative  Tribunal directed that all the papers be evaluated by the examiners afresh,  the High Court confined it to re-evaluation and moderation of some papers,  and that too only in those subjects wherein that was considered necessary,  applying the scaling method.  A significant finding recorded by the High  Court is that there was hardly any material to raise any suspicion about the  fairness of the examiners in examining the answer scripts.  Some doubts  arose when re-evaluation/moderation was done by the Head Examiner/Chief  Examiner in respect of some of the subjects.  The High Court, therefore,  gave directions for a limited re-evaluation and moderation confined to some  subjects only, and did not consider it necessary to order a total re-evaluation  of answer scripts of all subjects, or cancellation of the examination itself.

       It will be necessary at this stage to notice the salient findings recorded  by the Karnataka State Administrative Tribunal and the High Court.  The  Tribunal after noticing the submissions urged on behalf of the parties  observed that during the course of argument it enquired of the Karnataka  Public Service Commission about its willingness to re-evaluate the answer  scripts of the applicants before it.  The senior counsel appearing on behalf of  the Commission submitted that the Commission was not willing to  undertake that exercise.  The Tribunal subsequently suggested, after  arguments were concluded, to the Commission that it may produce the  marks list of the top 50 candidates in each category indicating the marks  assigned by the Head Examiner and the Chief Examiner as the case may be,  but the Commission filed a memo declining to produce the information  sought by the Tribunal for administrative reasons and having regard to the  limited scope of judicial review in such matters.  It was also explained by  counsel appearing for the Commission that the Secretary of the Commission  had gone for a training to Mussorie for a period of 6 to 8 weeks and that the  keys of the almirahs where the records had been kept were with him, and

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therefore the required information could not be produced readily.

       The Tribunal also sought clarification from the Commission about the  allegations made against some of the candidates namely Rameshwarappa  and his relatives.  The Commission confirmed the fact that Rameshwarappa  and his relatives were seated in the same hall to take the examination.  They  had opted for same optional subjects and their answers were valued by the  same examiner.

       In the facts and circumstances of the case, the Tribunal formulated the  following contentions of the Petitioners which required examination by it :                  "(i)  That they are highly qualified persons having                                                    secured very high professional degrees such as their  chosen fields and in that back ground it is  inconceivable that they should have been failed in  Compulsory papers, the expected standards of which  are not more than SSLC standards.

(ii)    That the valuation of the papers by the  examiners are apparently erratic as not to be regarded  as fair to all the candidates as for example, members  of the one family like sister, brother and brother-in- law securing top ranking in the final examination  indicating thereby manipulation of marks secured by  them, bearing no connection between the marks given  and the quality of answers; that one of the senior  employees of the KPSC whose son had appeared for  the examination had participated in the examination  process including evaluation of the answer scripts  casting a serious doubt as to the fairness in valuation  of the answer scripts.

(iii)   That one of the model answers had been  leaked-out prior to the examination affecting the  fairness of the examination process".                                              Repelling the submission urged on behalf of the Karnataka Public  Service Commission that a candidate cannot seek revaluation of his answer  scripts merely on his own perception of good performance, the Tribunal  observed that the mere fact that a candidate may think that he has performed  extremely well and yet not awarded marks which he rightly deserved, may  not by itself justify the revaluation of the answer scripts.  However, in the  light of other allegations of unfairness and arbitrariness, if found to be true,  re-examination of the answer scripts may be justified.  Reliance placed by  the Karnataka Public Service Commission on the decision of this Court in  Maharashtra State Board of Secondary and Higher Secondary Education  and another  vs.  Paritosh Bhupeshkumar Sheth and others  : AIR 1984 SC  1543 did not, according to the Tribunal, support the case of the Commission.   That decision was distinguished on the ground that in that case the Rules  specifically prohibited the authorities to entertain a claim of revaluation.  In  the instant case it observed that the Rules were silent on this aspect of the  matter and, therefore, in the absence of any express prohibition the  Karnataka Public Service Commission certainly had the power to order fresh  evaluation of answer scripts if it was satisfied that there was evidence of  unfairness and mal practice in the valuation of answer scripts.  In the interest  of fairness, the Commission may exercise such authority wherever  necessary.   

       As regards allegations of unfairness in valuation of answer scripts, the  Tribunal noticed that in the case of Remeshwarappa and his relatives the  answer scripts were first valued by the Examiner and then by the Chief  Examiner who awarded very high marks to them which really enabled them

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to get high positions in the merit list resulting in their ultimate selection.   The Tribunal noticed the marks awarded to Rameshwarappa and his  relatives Nagaraja and Triveni which demonstrated that very high marks  were awarded by the Chief Examiner and in some cases 80% marks were  awarded as against 30% awarded by the Examiner.  The Tribunal  commented on the manner in which the Chief Examiner increased the marks  awarded to these candidates.  This also disclosed that the model answers  prepared to maintain uniformity in the award of marks was not adhered to,  because in that event there could not be possibility of such a huge difference  in the award of marks by the Examiner and the Chief Examiner.  This  reflected on the fairness in the valuation of the answer scripts and  demonstrated that the answer scripts were not valued on the basis of the  model answers prepared as per the accepted standard.

       The Tribunal further commented on the refusal of the Karnataka  Public Service Commission to accept a suggestion of the Tribunal that all  the answer scripts of the applicants should be revalued.  In fact the  suggestion of the Tribunal that the marks list of the top 50 candidates in each  category be produced showing the marks awarded to them by the Examiners,  Head Examiner and the Chief Examiner was not accepted.  The Tribunal did  not find the explanation given by the Commission to be convincing.   The  Tribunal went to the extent of holding that the refusal of the Karnataka  Public Service Commission to produce the marks assigned to top 50  candidates gave rise to an adverse inference that if such tabulated statement  of marks was produced it would have gone against the Commission.   

The Tribunal also commented on the conduct of some of the officials  who shouldered heavy responsibility in the conduct of the examination.   Apart from the Secretary of the Commission, one Sadyojathaiah, who was  Incharge Secretary for a few months, did not declare that his son was also  taking the examination.  In fact his daughter also took the examination but  was unsuccessful.  This only showed that the declaration made by the  Examiners/officials were not scrutinized and enquired into with the result  that the wards/relatives of some of the officials closely associated with the  conduct of the examination also participated in the competitive examination.   May be that they did not act unfairly, but what was important was that the  examination must be seemed to have been conducted fairly.

A contention was raised before the Tribunal that the model answers  were known even before the examination was conducted and that such a  model answer relating to the compulsory subject, namely \026 Kannada  language prepared by the Karnataka Public Service Commission was filed in  a batch of applications.  The Karnataka Public Service Commission averred  that these model answers were prepared only a couple of days prior to  commencement of the valuation, but it did not deny that the model answer  filed with the applications purporting to be the model answer for the  Kannada language subject was in fact not the model answer prepared by the  Commission.   Though the Tribunal did not record a categoric finding of fact  that such a model answer was available to the candidates even before the  conduct of the examination, it commented on the fact that the model answer  was available to a candidate who annexed it with his application which  demonstrated that the Commission was not able to maintain secrecy in such  matters.

The Tribunal also held that the Karnataka Public Service Commission  could not deny revaluation of answer scripts if sought by any candidate who  is aggrieved by the valuation of his answer scripts.  To deny a candidate the  right to seek revaluation amounted to denial of fairness to him.  Therefore, in  the absence of a specific rule prohibiting re-evaluation, it would be  obligatory on the Karnataka Public Service Commission to grant such re- evaluation within a specified time after the announcement of the result.  It  referred to earlier instances where the Public Service Commission had  permitted re-evaluation of the answer scripts.

On such findings the Tribunal came to the conclusion that the award

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of marks to the candidates did not appear to be fair resulting in the vitiation  of the merit list.  But the Tribunal following the principles laid down in  Anamica Mishra and others  vs.  U.P. Public Service Commission,  Allahabad and others : 1990 (Suppl.) SCC 692 held that the entire  examination need not be set aside in the facts and circumstances of the case.   Fairness could be ensured if the answer scripts were revalued after taking  necessary precautions to ensure fairness.  It, therefore, passed an order for  fresh valuation of all the answer scripts laying down guidelines which have  been earlier referred to in this judgment.           

       We may observe at this stage that the Tribunal after considering the  material on record came to the conclusion that in respect of atleast three  candidates namely, Rameshwarappa, Nagaraja and Triveni who were high  rank holders, the marks awarded by the Chief Examiner was much more  than the marks awarded to them by the examiner.  That is how, they  managed to secure high positions in the competitive examination.  The  findings of the Tribunal are also borne out by the report of the Sub\026  committee constituted by the Commission to investigate the matter.  The  Committee found that serious irregularities were committed by one Prof.  K.S. Shivanna, Chief Examiner when he reviewed the marks awarded to  Rameshwarappa, Nagaraja and Triveni.  The said Rameshwarappa was  employed as Deputy Director of Food and Civil Supplies while Nagaraja  was his wife’s brother and Smt. Triveni and Smt. Hemalatha were two  sisters of his wife.  The report of the Sub-committee discloses that their  academic record was average.  All of them had chosen the same optional  subjects.  In General Studies Paper I and II and History Papers I and II all of  them had chosen the very same questions for answering and their answers  were also identical.  The Sub-committee found that Prof. Shivanna had been  appointed Chief Examiner to examine answers written in Kannada medium  in the subjects General Studies and History.  He had evaluated 127 answer  scripts as Chief Examiner. It was discovered that in respect of the aforesaid  four candidates he had even awarded marks for totally wrong answers.  He  later claimed that by oversight such mistakes were committed.  He described  as bona fide errors the awarding of more marks than the maximum  prescribed.  It was found that six other candidates had been shown such  favourable treatment by Prof. Shivanna, out of whom two were ultimately  selected but the remaining four could not get selected.  The evidence  collected by the Sub\026committee established that the aforesaid  Rameshwarappa used to visit the then Secretary of the Commission very  frequently, while Prof. Shivanna was his research guide for the Ph. D  programme.  It also appeared from the material collected by the Sub- committee that after the evaluation of answer scripts, all the three had  undertaken a joint foreign trip.  The Sub-committee came to the conclusion  that Sri Monappa the then Secretary of the Commission had parted with the  code numbers of the candidates to Prof. Shivanna, who was willing to oblige  Rameshwarappa and some others.  The Sub-committee found that Prof.  Shivanna who was Chief Examiner in respect of answer scripts in Kannada  medium, in the subjects General Studies and History, also picked up answers  given in English medium as in the case of Nagaraja and Triveni.  He sought  to explain this by saying that since Prof. Raju Naidu, Chief Examiner of  English medium was away, those papers had been brought to him and he had  accordingly moderated those papers.

       We do not wish to go into the details of the findings recorded by the  Sub\026committee because we are informed that a proceeding is pending  against Sri Rameshwarappa.  The selection of the alleged favoured  candidates has also been cancelled.  Any observation made by us, or finding  recorded in respect of the matter, may prejudice the case of Rameshwarappa  in the pending proceeding, and, therefore, we do not wish to make any  further comment on this aspect of the matter.  The findings of the Sub\026 committee have been noticed by us, as also by the High Court, in the context  of the challenge to the validity and fairness of the competitive examination  only for that limited purpose and not with a view to finding the guilt or  otherwise of Sri Rameshwarappa.

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       In the writ petitions preferred before the High Court against the order  of the Tribunal, while the selected candidates challenged the order for fresh  moderation in some subjects, the unsuccessful candidates challenged the  fairness of the examination and prayed for cancellation of the examination  itself.  The Karnataka Public Service Commission justified its stand before  the Tribunal.

       We have earlier noticed that the Tribunal after conclusion of the  hearing of the matter, had suggested to the Commission on November 11,  2001 that it may produce the marks awarded to the top 50 candidates in each  category, by the Head Examiner and the Chief Examiner.  The Commission  expressed its inability to give the aforesaid information having regard to the  scope of the proceeding before the Tribunal.  It was also stated that since the  Secretary of the Commission was away on training at Mussorie for a period  of six to eight weeks and the keys of the Almirah in which the records were  kept were with him, the information could not be produced immediately.  However, before the High Court the Commission voluntarily produced the  marks obtained by the top 50 candidates in each category, and with  necessary particulars.  The Commission also furnished the particulars of  marks obtained by all the candidates who were ultimately selected for the  personality test disclosing the marks awarded to them by the Examiner and  thereafter the Head Examiner or Chief Examiner after moderation.  The  High Court directed the Commission to produce the list of candidates in  whose cases the variation in marks was plus or minus 20 or above (out of  300 marks) in a subject and also to furnish the particulars of cases where the  Chief Examiners had done random re-evaluation with particulars of  difference in marks.  Accordingly, the Commission had produced necessary  statements as required by the Court.  The relevant part of the Memo filed  before the Court is as follows : -  

"The Commission has placed before this Hon’ble Court  subjectwise abstract of total number of answer scripts  valued, number of answer scripts moderated by the Head  Examiner and/or Chief Examiner and cases where the  marks awarded in moderation is plus or minus 20 or  more vis-‘-vis the marks awarded by the Examiner.  The  total number of cases where the variation is plus or minus  20 or more has been identified as 661.  Keeping in mind  anxieties expressed and apprehensions stated during the  hearing of the writ petitions and the suggestions that fell  from the Bench of this Hon’ble of this Hon’ble Court, the  Commission has examined the entire issue in the light of  the scheme laid down by the Commission regarding  valuation of the answer scripts.  The endeavour of the  Commission has been to find a solution which would be  in line with the scheme of examination prescribed by the  Commission.

       Keeping the above objective in mind and in  deference to the suggestions that emerged during the  hearing of the writ petitions, the Commission is making  the following offer:

(a)     Wherever the random review done by the Head  Examiner is less than 10 per cent of the answer scripts  evaluated by any examiner in any subject, the short fall  would be made up examinerwise and subjectwise by  random review of answer scripts to the extent of  shortfall.  While doing so, it will be ensured that random  sampling shall not be less than 5 per cent of the top-level  answer scripts.

(b)     The Commission has always been of the view that  review referred to at para 3 of the scheme of valuation is  not analogous to scaling technique.  It has been

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understood by the Commission as review of marks of  particular answer script taken up for random review by  the Head Examiner.  However, during the hearing it has  been expressed that review should be understood as  scaling technique.  The Commission has considered the  suggestion and is of the opinion that on the basis of  random review of answer scripts done in respect of  answer scripts evaluated by each examiner average  variation shall be arrived at.  Wherever the average  variation is less than plus or minus 20 general review of  the marks awarded need not be done. However, where  the average difference is plus or minus 20 or more, the  marks awarded by such examiner shall be increased or  decreased by that average in respect of each of the  answer scripts evaluated by that examiner.  In case the  average variation is less than plus or minus 20, but  variation in respect of individual answer scripts is plus or  minus 20 or above those answer scripts would be  subjected to third valuation.

(c)     As a result of random review if in respect of any  candidate the change in marks is too generous or too  adverse to the candidate, the Commission would refer  such paper for third valuation.

The secretary who was holding the post at the time when  central valuation was conducted in respect of  examination in question is no longer with the  Commission.  The Commission would ensure that  disinterested staff of the Commission headed by the  Secretary will supervise and monitor the entire process of  review and revaluation that would be undertaken as set  out above".    

       The High Court has noticed the fact that on March 27, 2002 this  memo had been prepared and circulated to all Counsels appearing in the  matter.  However, since the service of notice of the respondents was not  complete and the matter was being heard only for the grant of interim relief  at that stage, the memo was not actually filed and was later filed on July 22,  2002.  We have noticed these facts because it was argued before us that this  memo is anti-dated.  The observations of the High Court must set at rest this  controversy.

       On some aspects of the matter the Tribunal as well as the High Court  have recorded concurrent findings.  It has been concurrently found that so  far as Sri Rameshwarappa is concerned, as also his two relatives, with the  assistance of Chief Examiner, Prof. Shivanna and the Secretary of the  Commission, they were shown undue favour and their marks were increased  by Prof. Shivanna to such an extent that they obtained high positions and  were selected for appointment.  In doing so, Prof. Shivanna had committed  irregularities.  The High Court however has further recorded a finding that  so far as evaluation of the answer papers by the Examiners is concerned no  case of irregularity or unfairness has been established.  It is only at the stage  of moderation, and that too the moderation undertaken by Prof. Shivanna,  that there is evidence of irregularity and unfairness confined to the cases of  the three selected candidates, though seven other unsuccessful candidates  had also been given high marks by Prof. Shivanna.  It has, however, been  concurrently held that in the facts and circumstances of the case it was not  necessary to cancel the examination.  While the Tribunal felt that all the  answer scripts should be valued afresh, the High Court held that it was not  necessary to do so.  The High Court was of the view that only those answer  scripts required to be re-evaluated which had been moderated by Prof.  Shivanna as also those answer scripts in various subjects where the requisite  percentage of answer papers as required by the guidelines were not  moderated by the Head Examiner/Chief Examiner.  The High Court further

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directed that scaling method should be adopted in re-evaluation so that the  benefit of moderation is not confined to those candidates whose answer  scripts are by chance picked out for moderation, but the benefit is extended  to all candidates who may have similarly suffered or gained on account of  the examiner being strict or liberal in awarding marks.

       Having perused the material placed before us we are satisfied that this  is not a case where the examination deserves to be cancelled. We are also  satisfied that the finding recorded by the High Court that there is really no  allegation imputing unfairness in the matter of examination of answer scripts  by the examiners, is justified.  The allegations, if any, relate to the stage of  moderation by the Chief Examiners, and in particular confined to the  conduct of Chief Examiner Prof. Shivanna.

       The High Court has very meticulously examined the material on  record and it is not necessary for us to undertake that exercise over again.   The High Court had called for and examined the following statements/  extracts :-

"i) statement showing the merit-wise marks of the first 50  candidates category wise (that is GM, Group 1, 2A, 2B,  3A, 3B, SC and ST);

(ii) statement showing the subject-wise marks awarded  by the Examiners, Head examiners and Chief examiners,  where the difference is plus 20 and above (335 answer  scripts);

(iii) statements showing the subject wise marks awarded  by the Examiners, Head Examiners and Chief Examiners,  where the difference is minus 20 and above (in regard to  326 candidates);

(iv)  Subject wise abstracts showing the number of  answer scripts moderated by Head Examiners and Chief  Examiners and the number of answer scripts where the  variation on moderation is plus or minus 20 and more;

(v)  subject-wise list of Examiners, Head Examiners and  Chief Examiners".

                      The High Court found that random review of adequate number of  answer scripts had been done in the seven optional subjects (out of thirty)  noticed in paragraph 31 of its judgment.  Review disclosed that variation of  marks had not exceeded plus or minus 20 (out of 300 marks).  The High  Court, therefore, found that there was no irregularity in review evaluation or  moderation in the aforesaid seven subjects and no interference was,  therefore, called for.

       It further found that in the four subjects noticed in paragraph 32 of its  judgment consisting of two papers each, there was adequate random review  of answer scripts by the Chief Examiners and there was no variation beyond  plus or minus 20 marks (out of 300 marks) in some papers, and only a very  few, that too marginal, in other papers. There was, therefore, no need to  interfere with the evaluation in respect of the aforesaid four subjects.  In the  optional subject Chemistry also, the material placed on record, did not  justify any interference with the evaluation of answer papers.         However, the High Court found that in the optional subject  Agriculture and Marketing, no Head Examiner has been appointed, and the  Chief Examiner had reviewed only three answer scripts out of 222 in Paper I  and only four out of 279 in Paper II, that is 1% to 2%.  Similar was the case  with optional subject Criminology.  In regard to the remaining 16 optional  subjects and General Studies the High Court found that the number of  answer scripts were large and the variation exceeding plus or minus 20

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marks were also substantial.  The necessary particulars have been noticed by  the High Court in paragraph 34 of its judgment.  The High Court has  observed that the moderation in these subjects was restricted only to the  answer scripts which were reviewed, without adopting the scaling technique  of moderation by applying the upward or downward revision of all the  answer scripts evaluated by the respective examiners.  Even the random  review was not done to the extent suggested in the guidelines, nor was any  record maintained to show whether moderation was done by the Head  Examiner/Chief Examiner in the manner required by the guidelines.

       The High Court further noticed that there were serious irregularities in  the review valuation by one of the Chief Examiners namely, Prof. Shivanna  who had evaluated 127 answer scripts as Chief Examiner in the subject  General Studies and History.  The High Court has noticed the findings  recorded by the Sub\026committee appointed by the Commission to investigate  into the matter.  The High Court found that glaring irregularities were  committed by Prof. Shivanna in the random review done by him in History  Papers I and II and General Studies Papers I and II and, therefore, there was  need to review the process of moderation even in these subjects.   

       In view of its findings the High Court set aside the direction of the  Karnataka Administrative Tribunal for a fresh evaluation of all the answer  scripts.  The High Court directed that moderation, or random review, will be  undertaken only where such moderation/random review was found to be  inadequate.  The subjects in which re-evaluation has been ordered have been  enumerated in paragraph 39(b) of the judgment of the High Court.  In so  doing, the Karnataka Public Service Commission has been directed to apply  the scaling method as described in paragraph (b) of its memo dated March  27, 2002.  The moderation is required to be done under the supervision of  the Secretary of the Karnataka Public Service Commission, and it is open to  him to have the moderation done at two tier level (i.e. Head Examiner and  Chief Examiner) or at only one level, that is Chief Examiner.  A fresh panel  of Head and/or Chief Examiner shall be prepared.  The High Court did not  direct moderation/ random review in respect of the subjects where it found  random review to be adequate and there was no conspicuous variation in  marks awarded by the examiner and the Head Examiner.  The High Court in  its impugned order has enumerated those subjects/papers in sub-para (c) of  its order.

       The High Court further directed to hold fresh interviews and selection  in place of those carried out during the pendency of the applications before  the Karnataka Administrative Tribunal.  It further directed the Karnataka  Public Service Commission to re-evaluate the compulsory papers (English  and or Kannada) of those candidates who had approached the High Court  and the Tribunal for such re-evaluation before the date of the Judgment.    The High Court has directed that a fresh list of candidates shall be prepared  and candidates invited for personality test in accordance with Rules.

       We may at the outset notice the submission urged on behalf of the  unsuccessful candidates that the entire examination should be cancelled and  a fresh examination be held.  We have noticed earlier the findings of the  Tribunal as well as the High Court on this aspect of the matter.  It has been  concurrently held by the Tribunal as well as the High Court that it is not  necessary to hold the examination afresh.  However, while the Tribunal held  that all the papers should be evaluated afresh, the High Court after a  meticulous examination of the material placed on record has come to the  conclusion that it is not necessary to re-evaluate all the papers.  It has upheld  the evaluation of papers in some subjects while it has directed re-evaluation  in some others.  The High Court did not consider it necessary to order fresh  evaluation of all the papers by the examiners, because it did not find any  allegation or evidence of partiality or favouritism against the examiners.   Even the Tribunal has not specifically recorded any finding that the  examiners acted in improper or unfair manner.  The allegations really are  against the re-evaluation of papers by Head Examiners/Chief Examiners and  in particular against the conduct of Prof. Shivanna, who it is found granted

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abnormally high marks to his favourite candidates so that they may rank  high in the merit list and be ultimately selected.  The Tribunal as well as the  High Court have concurrently held that the conduct of Prof. Shivanna was  improper and unfair and we do not find any reason to interfere with their  concurrent finding.  However, we do not wish to make any further  observations since we are informed that proceedings are pending against  Prof. Shivanna and necessary action is being taken in this regard.  We  further clarify that the finding recorded in these proceedings is only for the  purpose of disposing of these appeals and should not prejudice the case of  the parties in the pending enquiry.

       So far as the Tribunal is concerned, it has ordered fresh evaluation by  the examiners, while the High Court has directed re-evaluation only at the  Head Examiners/Chief Examiners level, that is at the stage of moderation/  random review.  We find that there is really no justification for fresh  evaluation of all the answer scripts by the examiners, and we concur with the  finding of the High Court.

It appears to us that the Tribunal directed fresh evaluation of all  answer scripts because the suggestion made by the Tribunal for production  of the marks assigned to the top 50 candidates in each category was not  accepted by the Commission.  However, before the High Court the relevant  material was produced and the High Court had the advantage of scrutinizing  the material placed before it.  Counsel for the successful candidates is,  therefore, right in his submission that if the material asked for had been  produced before the Tribunal, perhaps the Tribunal would not have drawn an  adverse inference and directed a wholesale re-evaluation of all the answer  scripts.   

 On the question of re-evaluation by Head Examiner/Chief Examiner,  the High Court has placed the subjects into two categories viz; those where  sufficient percentage of answer scripts as required by the Rules had not been  taken up for random review/moderation, and secondly, those where the  random review/moderation  is either found to be unfair (as in the case of  Prof. Shivanna), or where the variation of marks awarded by the examiner  and the Chief Examiner/ Head Examiner was plus or minus 20 or more.  The  High Court has recorded reasons for directing re-evaluation in only some of  the subjects.  In regard to other subjects the High Court has found that  sufficient number of answer scripts were randomly evaluated and  moderated, and further there was no conspicuous variation in the award of  marks by the examiners and the Head Examiners.  Obviously, therefore,  there was no need to get such answer scripts re-evaluated.  However, where  sufficient number of answer scripts were not re-evaluated by Head  Examiner/Chief Examiner as required by the Rules, the High Court was  certainly justified in directing compliance of the Rules.   

       Another aspect of the matter is with regard to applying the scaling  method as per the direction of the High Court.  The scaling method has been  described earlier in this judgment.  The selected candidates have a grievance  against the application of this method. It was submitted that it may not be  proper to apply the scaling method only in respect of subjects where the  answer scripts have to be moderated by Head Examiner/Chief Examiner and  not to other subjects where the High Court has upheld the moderation/  random checking by the Head Examiner/Chief Examiner.  We have given  the submission our serious thought.  The scaling method is applied only with  a view to maintain a uniform standard in the marking of answer scripts.  As  is well known some answer scripts are randomly taken up for evaluation by  Head Examiners/Chief Examiners.  It may be that some examiner may be  very liberal and generous in awarding marks whereas some other examiner  may award much less marks for the same quality of answer.  Upon  moderation, no doubt the candidate whose answer paper is moderated gets  benefit of moderation, but such benefit is not extended to other candidates  whose answer scripts may have been examined by the same examiner, but   were not randomly selected for re-evaluation by the Head Examiner/Chief  Examiner. It is true that there is bound to be some difference in the marks

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awarded by different examiners in the same subject.  But the need for  applying scaling method arises only in cases where the variation in marks  awarded exceeds a certain level.  It is, therefore, not necessary that the  scaling method should be applied in all cases.  The scaling method will be  applied only where the variation in marks is plus or minus a certain level or  percentage.  The High Court in the instant case has directed that scaling  method shall be applied only when it is found that average variation is plus  or minus 20 or more.  Wherever the average variation is less than plus or  minus 20, general review of the marks awarded need not be done.  We were  told that the scaling method is now being applied in many competitive  examinations held in this country and the purpose of applying the scaling  method is to bring about a certain uniformity of standard in the matter of  award of marks by the examiners.  No exception can be taken to the scaling  method in principle.   

       In fact this Court in U.P. Public Services Commission vs. Subhash  Chandra Dixit and others : AIR 2004 SC 163, has found the scaling method  to be fair since it seeks to eliminate the inconsistency in the marking  standards of the examiners.  This Court has observed:-

"There is a vast percentage difference in awarding of  marks between each set of examiners and this was sought  to be minimized 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  answer sheets 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".  

                Then remains the question as to whether it will make any difference in  the instant case if the scaling method is not applied to subjects where  valuation and revaluation has been upheld by the High Court.  In our view, it  will make no difference because the High Court has not found it necessary to  direct re-evaluation of answer scripts in those subjects where the average  variation was not found to be more than plus or minus 20%.  Thus, the  subjects in which the High Court has not directed re-evaluation are those  subjects where in any case the scaling method would not be applicable  because the average variation of marks has been found to be within the  prescribed parameter.  We, therefore, uphold the direction of the High Court  to apply the scaling method in re-evaluation of answer scripts pursuant to the  order of the High Court.              

       No doubt counsel for the successful candidates submitted that it was  not necessary to apply the scaling method as the same purpose can be  achieved by the procedure already prescribed.  It was submitted that the  percentage 5 or 10% as the case may be for random evaluation is the  minimum prescribed.  There is nothing which prevents the random re- evaluation of a larger percentage of answer scripts.  There was, therefore, no  need to apply the scaling technique.  This submission must be rejected  because even if answer scripts more than the percentage prescribed are  reviewed by Head Examiner or Chief Examiner, that will not achieve the  purpose for which the scaling technique is adopted, because the scaling  technique is confined to award of marks by examiners in the same subject  who are either too liberal or too strict in awarding marks with the result that  the average variation is more than plus or minus 20 marks.  If the desired  result is to be achieved all the answer papers examined by a particular  examiner will have to be re-evaluated.  As between the two options, we find  the scaling method to be more practical and effective.    

       The counsel for the successful candidates as well as counsel appearing

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on behalf of the Karnataka Public Service Commission submitted that it is  not necessary even to re-evaluate the answer scripts in some of the subjects  as directed by the High Court because the findings of the Sub-committee  appointed by the Karnataka Public Service Commission is clear and  categoric.  The Sub-committee which inquired into the irregularities  committed in the conduct of the examination found that the irregularities  were committed by Prof. Shivanna who awarded very high marks as the  Chief Examiner to his favourite candidates namely, Rameshwarappa and the  members of his family.  There were 10 cases which were identified for  favoured treatment, out of whom three were selected.  In all Shivanna had  moderated only 127 answer papers and, therefore, it was not necessary to re- evaluate the other answer scripts except those re-evaluated by Prof.  Shivanna as the Chief Examiner.  It was also submitted on behalf of the  successful candidates that the guidelines provided that random review or  random sampling should not be less than 5% of the top level answer scripts  and over all random review should not be less than 10% of the answer  scripts evaluated by each examiner.  However, according to them, the High  Court has increased the percentage to 20% instead of 5 to 10%.

       There is no merit in either of the two submissions.  The High Court  has found as a fact that in some subjects random review was not done to the  extent prescribed in the guidelines (5% of top level answer scripts and over  all random review of 10%).  No minutes or record were maintained to show  whether moderation was done by the Head Examiners/Chief Examiners in  the manner required by the guidelines.  In these circumstances, one cannot  find fault with the direction of the High Court for re-evaluation of answer  scripts in subjects in which moderation/random review was not done in  accordance with the guidelines.

       The submission that the guidelines earlier provided only for a random  review to the extent of 5 to 10 % which has now been increased to 20%, is  based on a factually wrong assumption.  The High Court in paragraph 35 of  its judgment has noticed that the random review prescribed under the  guidelines was to be done in respect of 5% of top level answer scripts and  10% over all random review.  Even the memo filed by the Karnataka Public  Service Commission and accepted by the High Court assured that whenever  random review done by the Head Examiner was less than 10% of the answer  scripts evaluated by any examiner in any subject, the shortfall would be  made up examiner-wise and subject-wise by random review of answer  scripts to the extent of shortfall.  While doing so it will be ensured that  random sampling was not be less than 5% of the top level answer scripts.   We have, therefore, no doubt that the direction of the High Court has not  deviated from the guidelines.  Moreover, 5% or 10% as the case may be is  the minimum required percentage of random review.  It can always be more  than the minimum prescribed.   

       We shall now notice some of the other submissions advanced before  us.  It was argued before us that the key answers had been leaked out. The  High Court has noticed the contention advanced before it and observed that  the same was neither pursued nor established.  The facts disclosed that the  model answers were prepared only a few days before the actual  commencement of the valuation.  In the instant case, valuation commenced  on May 17, 1999 while the examination was held between April 9, 1999 and  May 3, 1999.  There was, therefore, no question of the model answers being  leaked out earlier so as to be available to the examinees on the dates of  examination.

       It was also argued before the High Court and faintly submitted before  us that the writ petitioners were students who had a good academic record  and, therefore, it was unbelievable that they would have failed in  compulsory papers English and Kannada which were of SSLC level.  It was  explained by the Commission that it is not as if all writ petitioners had failed  in compulsory subjects English and Kannada.  Only three had failed in  English and one had failed in Kannada.  The other writ petitioners had  passed in the compulsory subjects  English and Kannada, but since they had

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not secured high marks over all they were not called for personality test.  In  any event, the Karnataka Public Service Commission had agreed to re- evaluate the compulsory papers of the applicants/petitioners who had already  approached the Tribunal or the High Court.  The High Court has accepted  the submission on behalf of the Commission and clarified that the relief in  regard to re-evaluation of compulsory papers should be restricted to those  candidates who have approached the Tribunal or the High Court, and not to  others.

       A submission was sought to be urged before us on behalf of the  unsuccessful candidates that even the interview conducted for selection of  candidates was not proper inasmuch as 350 candidates out of 390 were  awarded 195 marks each.  Counsel for the successful candidates submitted  that such a contention was not raised either before the High Court or the  Tribunal, and there is no pleading or finding on this aspect of the matter.  It  is not necessary for us to examine this question. The High Court has directed  holding of fresh interviews on the basis of marks obtained after re-evaluation  of answer scripts in accordance with the directions of the High Court.  Since  fresh interviews will be held, the grievance of the aforesaid petitioners does  not subsist.

       Having considered all aspects of the matter, we are satisfied that no  interference by this Court in these appeals is called for.  The High Court has  taken care to safeguard the interest of all concerned and to rule out the  possibility of unfairness in the re-evaluation of the answer scripts.  The  directions made by the High Court are adequate to deal with the peculiar  facts of this case.

We, therefore, dismiss all the appeals and affirm the judgment and  order of the High Court.