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CASE NO.: Appeal (civil)  8609 of 2003

PETITIONER: U.P. Public Services Commission

RESPONDENT: Subhash Chandra Dixit & Ors.

DATE OF JUDGMENT: 05/11/2003

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL NOS.    OF 2003 [Arising out of S.L.P.(C) Nos 207, 208, 3758 & 6295 of 2003]

[Arising out of S.L.P.(C)  No. 23723 of 2002]

K.G. BALAKRISHNAN, J.

       Leave granted.

       Three of  these appeals have been preferred by the Uttar Pradesh Public  Services Commission (hereinafter called as "U.P.P.S.C.") challenging the  judgments  rendered on 3.10.2002 and 11.12.2002  by the Division Bench of the  High Court of  Allahabad  in  Civil Miscellaneous  Writ  Petitions.  The U.P.P.S.C.  conducted various competitive examinations and in these examinations, the  U.P.P.S.C. applied a system of scaling of marks awarded by the examiners who  valued the answer papers.  The system of scaling of marks was invoked in the  U.P. Civil Judge (Junior Division) Examination held in August 2000,  the result of  which was published on 25.1.2001.  Some of the candidates,  who  could not  secure selection in the examination assailed the examination system adopted by  the U.P.P.S.C. mainly on the ground that the introduction of scaling of marks was  arbitrary and illegal.   Their plea was accepted by the Division Bench and by  judgment   dated  3.10.2002,   the Division Bench set aside the merit list  prepared by the U.P.P.S.C. in respect of the Civil Judge (Jr. Division)  Examination, 2000 and directed that the merit list be prepared afresh on the  basis of actual marks secured by the candidates without applying the formula of  scaling.  SLP (Civil) No. 23723 of  2002 is filed against that decision.

       Similarly, U.P.P.S.C. held examination for the Provincial Civil Services  (Executive Branch), Main Examination, 2001 and Provincial Civil Services  (Executive Branch) Preliminary Examination, 2002.  In both these examinations,  U.P.P.S.C. applied the system of scaling.  The results of these two examinations  were also challenged on  similar grounds and the Division Bench set aside the  final merit list prepared by the U.P.P.S.C. in respect of these two examinations.   SLP (Civil) No. 207 of  2003 is in respect of Provincial Civil Services (Executive  Branch) Main Examination, 2001 and SLP(Civil) No. 208 of 2003 arises out of the  examination of Provincial Civil Services (Executive Branch), Preliminary  Examination, 2002.

       The  remaining   two  appeals  arising  out  of SLP (C) No. 3758 of 2003  and  SLP(C) No. 6295 of 2003 have been preferred  by candidates aggrieved by

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the aforesaid  judgments of the High Court.

       At first, we shall consider the SLP (Civil) No. 23723 of 2002 in respect of  Civil Judge (Jr. Division) Examination, 2000.  The U.P.P.S.C. advertised for  selection of 147 posts of Civil Judge (Jr. Division) Examination, 2000.  The  examination consisted of written tests and viva voce.  Total marks for written  examinations were 850.    100 marks were assigned for viva voce.  The details  are as follows:-

       Subjects                                                        Marks

(i)     Present day                             Paper-I         150 marks (ii)    Substantive Law                 Paper-II                200 marks (iii)   Procedural Law                  Paper-III               200 marks (iv)    Criminal & Revenue Law          Paper-IV                200 marks Language I & II   (a) English to Hindi & Vice Versa     Paper-V         60 marks   (b) Hindi to Urdu & Vice Versa                Paper-VI                40 marks

       Total                                                           850 marks

       4270 candidates appeared for the examination.   For each of the subjects  in the written examination, there were around 14 examiners and each of them   evaluated  about 300 answer sheets, except in language papers.   U.P.P.S.C.   had earlier held similar examination for Civil Judge (Jr. Division) for selection of  Judicial Officers in 1997 and 1999.  According to the U.P.P.S.C., there was wide  disparity in awarding marks by the various examiners in respect of the same  subject.    The  answer sheets were randomised before being given to  examiners.    The randomisation was done at three stages, namely, at the stage  of allotment of roll numbers, allotment of centre and at the time of distribution of  answer sheets to the examiners for evaluation.  U.P.P.S.C. received  representation from several quarters to adopt a scientific method of evaluation of  marks awarded by different examiners in respect of common papers.  It was  noticed that the different examiners adopted  different yardsticks to award the  marks to the candidates. Thus, the candidates were left at the whims of the  examiners.  The gross disparity between  two sets of examiners resulted in  injustice to some of the candidates and therefore a  check was required.  It was  noticed that the marks awarded by two different sets of examiners required to be  scaled in accordance with certain universally accepted method.  U.P.P.S.C.  considered the different facets of scaling system and appointed a three-member  committee to carry out an in-depth study of the scaling system.  The members of  this committee consisted of Professors from reputed universities.  U.P.P.S.C.  considered the recommendations made by the expert committee and on  7.9.1996 accepted the report of the Committee.  U.P.P.S.C. resolved to apply the  formula of scaling and thereafter, it was made applicable to the PCS Preliminary  Examination, 1996 and also in PCS  Main Examination held in 1996.   Considering the utility of the scaling system, the U.P.P.S.C. decided in its  meeting on 13.10.1999 to apply the scaling pattern for all the examinations  conducted by them.  In the case of Civil Judge (Jr. Division) Examination, 2000,  the answer sheets were randomised in order to avoid duplicity or any possible  mischief.  The marks awarded by each examiner were considered and  scaled in  accordance with the formula adopted by the U.P.P.S.C.  The said formula was  based on opinion of experts on the subject and accordingly the result was  published by the U.P.P.S.C.  The merit list published by the U.P.P.S.C. was  challenged by the respondents in SLP (Civil) No. 23723 of 2002 on the ground  that the scaling system adopted by U.P.P.S.C. was confusing, arbitrary and  without any reasonable basis.  It was alleged that arbitrary marks were awarded  to certain candidates in the name of scaling system to provide undue favour to  them. It was contended that the U.P.P.S.C. had not disclosed the guidelines and  criteria adopted in implementing the scaling system and, therefore, it was  arbitrary and unjustified.  It was also contended that several candidates had been  awarded less than 40% marks without any basis whereas several other  candidates who had secured lesser marks in the written tests were awarded

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more than 60% or 70% marks.

       The Division Bench considered the various contentions raised by the  respondents as well as the U.P.P.S.C. and held that the application of scaling  was not justified nor supported by any valid statutory permission.  The Division  Bench was of the opinion that where selection was to be made on comparative  merit,  the adoption of any such process which  had the effect of adding marks to  the actual score of the candidate, was destructive of the system   whereas the   objective was to select a small number of best candidates on the basis of their  merit out of thousands who had appeared in the examination.

       The Division Bench also held that the U.P.P.S.C. had no power under  Rule 51 of the U.P.P.S.C. (Regulation of Procedure and Conduct of Business)  Act, 1974 to invoke the scaling system.  Rule 51 says that the merit list shall be  prepared after adding the marks of interview/personality test with the marks  secured by the candidates in the written examination.  The Division Bench was of  the opinion that the expression ’marks obtained by the candidates  in the written  examination’ meant the actual marks awarded by the examiner.

       Shri P.P. Rao, learned Senior Counsel,  appeared on behalf of U.P.P.S.C.  in SLP(Civil) No. 23723 of 2002 and Shri Rakesh Dwivedi, Senior Counsel  appeared  on  behalf  of   the   respondents.     Additional   Solicitor    General,  Mr. R.N. Trivedi    appeared on behalf of the appellants in SLP(Civil) No. 207 of  2003 and SLP(Civil) No. 208  of  2003.

       Shri   Rakesh   Dwivedi  contended  that   the system of scaling adopted  by U.P.P.S.C.   with   respect   to   the competitive examination of Civil Judge,  [Jr. Division] is unconstitutional as it has been enforced without any  corresponding amendment in the U.P. Nyayik Sewa Niyamavali, 1951  [for short  "Niyamavali 1951"]  and the examination for selection of Civil Judge [Jr. Division]  should  have been conducted in accordance with the procedure prescribed in  that  Niyamavali and any deviation therefrom would be illegal.    The counsel  further contended that any of the provisions contained in the U.P. Public Services  Commission   (Regulation of Procedure and Conduct of Business) Act 1974,   which  are contrary to the  provisions of the  Niyamavali 1951,  cannot be applied  for the selection of Judicial Officers  in the State of Uttar Pradesh as the U.P.  Public Services Commission Act, 1974  is not an enactment made in accordance  with Article 234 of the Constitution of India as there was no consultation with the  State Public Services Commission and  the High Court.  It was further contended  that even if Rule 51 of 1974 Act permitted the U.P.P.S.C. to adopt  scaling  of  marks,  the same  should not have been applied in the case of selection of  Judicial Officers.

       Shri P.P. Rao,  learned Senior Counsel appearing for the U.P. Public  Service Commission contended that Article 320 of the Constitution gives ample  power to the Public Service Commission to conduct the selections  of candidates  and such  power of the Public Service Commission to conduct the examinations  for appointment to the services of the Union and States  is not subject to any of  the provisions contained in the Constitution and that it is the constitutional duty of  the State Public Service Commission to  conduct such examinations in a free and  fair manner.

       In order to understand the rival contentions raised by the parties in this  case, it is necessary to refer  to various provisions in the Constitution as well as  the  two enactments, namely,  the Niyamavali 1951 and the U.P. Public Services  Commission  (Regulation of Procedure and Conduct of Business) Act, 1974   which regulates the conduct and procedure of examinations.   

       Article 234 of the Constitution reads as under :

"234.  Recruitment of persons other than District Judges to the  judicial service. --- Appointments of persons other than District  Judges to the judicial service of a State shall be made by the  Governor of the State in  accordance with rules made by him in that  behalf after consultation with the State Public Service Commission

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and with the High Court exercising jurisdiction in relation to such  State."

In accordance with the above Article of the Constitution, Niyamavali 1951  was enacted and in the preamble it is mentioned that in exercise of the power  conferred under Article 234  and the Proviso to Article 309 of the Constitution of  India, the Governor in consultation with the U.P. Public Service Commission and  the High Court of Judicature at Allahabad, makes the rules regulating the  recruitment to posts in, and the condition of service of persons appointed to the  Uttar Pradesh Nyayik Sewa.  Part II of the Niyamavali 1951 deals with the  strength of the service.  Part III deals with the procedure for recruitment to the  service and Rule 6 thereof says that recruitment to  the  service shall be made on  the basis of the result of a competitive examination conducted by the  Commission.   Rules  10, 11 and 12  of Part IV  deal with the eligibility criteria  and academic qualifications.   Rule 15 of Part V    deals with the procedure  for  recruitment.  It reads as under :

"15. Competitive examination --  The examination may be  conducted at such time and on such dates as may be notified by  the Commission and shall consist of ---

(a)     written examination in such legal and allied subjects,  including  procedure, as may be included in the syllabus  prescribed under Rule 18;

(b)     an examination to test the knowledge of the canidates in  Hindi and Urdu; and  

(c)     an interview to assess the all round student career of the  candidates and their personality, address and general  suitability."

Part VI,  Rule 19  deals with  appointment, probation and confirmation.    Rule 19 reads as  follows :

"List of candidates approved by the Commission \026 The Commission  shall prepare a list of candidates who have taken examination for  recruitment to the service in order of their proficiency as disclosed  by the aggregate marks finally awarded to each candidate.  If two  or more candidates obtain equal marks  in the aggregate, the  Commission, shall arrange them in order of merit on the basis of  their general suitability for the service.

Provided that in making their recommendation, the Commission  shall satisfy themselves that the candidate has obtained such an  aggregate  of marks in the written test that he is qualified by his  ability for appointment to the service."

The U.P. Public Service Commission (Regulation of Procedure and  Conduct of Business) Amendment Act, 1976 was passed by the legislature of the  State of Uttar Pradesh and it received the assent of the Governor on May 19,  1976.  This Act lays down the general guidelines in respect of the procedure and  conduct of business of the U.P. Public Service Commission.  The various  provisions in this Act deal with the method and manner  in which the competitive   examinations  are to be conducted.  Chapter II deals with the composition of the  Commission and as to how the meetings of the Commission are to be arranged  and stipulates that the Chairman and in his absence the senior-most member  present shall preside over the meetings of the Commission.   Rule 11 of Chapter  II says  that the decisions of the Commission, as far as may be, shall be  unanimous.   Chapter III deals with the provisions as to how interview/viva voce  is to be conducted.   Chapter IV prescribes as to how the written examinations  are to be conducted by the Commission.   Rule 26 says that the Commission  shall prepare a panel of examiners for each subject in which the Commission  holds examinations or  may constitute a Committee for the purpose and that

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different committees may be constituted for different subjects and the reports of  the Committee shall be laid before the Commission for approval.  The  Commission may make such alterations or additions as it may deem fit in the  panels prepared by the Committee.   No officer of the Commission shall be  placed on the panel of examiners and the panels  so  prepared and/or approved  by the Commission shall be reviewed by it from time to time.   The panel of  examiners shall be a  secret document  and it shall be kept in safe custody by   the  secretary under seal and shall be submitted to a Member or the Commission  on requisition.  Examiners shall be appointed by the Commission from the panels  made in accordance with the  rules.    Rule 28  says that the question  papers set  by the examiners shall be placed before the Commission to ensure conformity  with the required standard of examination.   The commission may moderate the  question papers or constitute a committee to perform the work of moderation on  their behalf.   Rule 29 says that the Commission shall conduct examination for  the various posts to be filled by competitive examination and that the  Commission may  hold combined  competitive examinations for selection to  various posts under the purview of the Commission.   Rule 30 provides that the  Commission shall advertise the vacancies for which selections are to be made  and invite applications from eligible candidates.   Applications received in  response to advertisement  shall be scrutinized by the office in the manner  prescribed by the Commission.   Rule 31  says that no candidate shall be  admitted to the examination unless he has duly applied on the prescribed  form  and has deposited the prescribed application/examination fee within the  prescribed time.  The Commission is not empowered to accept advance  applications from candidates on plain piece of paper  and no application received  after the last date fixed for receipt of applications shall be accepted.   Rule 32  says that all eligible candidates shall, subject to provisions of the rules, be  admitted to the examination.   Rule 33 provides that the Commission shall fix the  place, date/dates and time of examination and the centres, with the prior  approval of the Commission.   Rule 34 says that the Secretary shall prepare a list  of the persons suitable to be appointed as invigilators and shall get the same  approved by the Commission. Rules 35 to 52  deal with the detailed procedure  as to how the answer books are to be sent to  various examiners  and valued by  them.    Fake roll numbers shall be  allotted to each candidate in each paper  before the answer books are despatched to the examiners for assessment.  Time  limit is prescribed for return of the answer sheets after evaluation.   The  Secretary shall take steps for tabulation of marks obtained by each candidate as  soon as  scrutiny of scripts has been done.   The Commission has to make  random checking of the tabulation to ensure the correctness and accuracy of  tabulation as well as of assessment of answer books.   It is  the responsibility of  the Commission to ensure  correct tabulation of marks and correct restoration of  original roll numbers of the candidates.   The Commission shall decide the  number of candidates to be called for interview to appear before a board of  boards on any day.   On each day after the interview is over and marks are  awarded to each candidate, the mark sheet prepared in duplicate shall be placed  in separate sealed covers and the original will be sent to the Secretary to be kept  under his safe and secret custody.

Rule 51,  which is relevant for the purpose reads as follows:

"51.  The mark sheets so obtained shall be opened on the last day  of interview and immediately thereafter the marks of  interview/personality test shall be added to the marks obtained by  the candidates in the written examination.   Thereafter on the basis  of the totals so  obtained, the merit list shall be prepared and  placed before the Commission for final declaration of the result.

Provided that the Commission may, with a view to eliminating  variation in the marks awarded to candidates at any examination or  interview, adopt a method, device or formula which they consider  proper for the purpose."

The contention of the learned counsel for the U.P. Public Services  Commission is that the Proviso to Section 51 gives ample power to the  Commission to adopt a scaling system to find out the most suitable candidates

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for selection and the marks awarded to the candidates could be varied by  adopting such a system, whereas the contention of the respondents’ counsel is  that Rule 19 of Niyamavali 1951 expressly says that the Commission shall  prepare the list  of candidates in the order of their proficiency  as disclosed by the  aggregate marks finally awarded and it was argued that the marks finally  awarded means the  marks assigned by various examiners to each of the  candidates and it does not mean the marks assigned to the candidates after the  scaling system is applied.

The question, therefore, that arises for consideration is whether the U.P.  Public Service Commission can adopt the scaling system by invoking the power  conferred under Rule 51 of the 1976 Amendment Act in view of Rule 19  contained in Niyamavali 1951.   Of course, Niyamavali 1951 was made by the  Governor in consultation with the U.P. Public Services Commission   and the  High Court of Judicature at Allahabad by virtue of the powers conferred by Article  234 of the Constitution.  Whereas the provisions of the 1976 Act  are general  guidelines for the U.P. Public Services Commission, it is not an enactment made  in consultation with the High Court.  Nevertheless, the provisions of 1976 Act are  applicable for the purpose of conducting examination for recruitment of Judicial  Officers in the State of Uttar Pradesh.   The expression ’aggregate marks’ used  in Rule 19 of the Niyamavali 1951 can only be construed as the final marks  awarded after the scaling system is applied.   Certainly the Proviso to Rule 51 of  1976 Act gives ample power to the Commission to adopt any method, device or  formula to eliminate any variation in the marks awarded to the candidates.   The  various provisions contained in 1974 Act deal with the method and manner in  which the examinations are to be conducted.  The Niyamavali 1951 deals  with  only general  provisions regulating  recruitment    to the posts and the conditions  of service.  Niyamavali 1951 does not deal with the method and manner in which  the examinations are to be conducted.   Various steps and procedures have to  be adopted in completing the recruitment for which detailed procedure has been  laid down.   This procedure is not part of the Niyamavali 1951.

We do not think that the Proviso to Rule 51 is in any way in conflict with   Rule 19 of Niyamavali 1951.   The aggregate marks can only be  considered  to  mean as the total marks finally obtained by the candidate after the complete  valuation process is over.  The dictionary meaning of ’aggregate’ is thus:  (i) a  whole formed by combining several disparate elements; (ii) the total score of a  player or team in a fixture comprising more than one game or round; (iii) formed  or calculated  by the combination of many separate units or items.

The contention of the respondents’ counsel is that Niyamavali 1951 is a  complete Code in itself and the selection process shall only be done in  accordance with the provisions contained therein.   This plea cannot be accepted  as the Niyamavali 1951 only gives the special rules concerning Subordinate  Judicial Service in the State of Uttar Pradesh whereas the U.P. Public Service  Commission (Regulation of Procedure & Conduct of Business) Amendment Act,  1976 gives guidelines for any recruitment to be made by U.P.P.S.C.    All these  provisions are applicable to a recruitment   made  to Judicial Service also.

Learned counsel for the respondents made reference to three decisions of  this Court and contended for the position that if the recruitment is made in  contravention of the rules framed under Article 234 of the Constitution, the same  shall be void.     Umesh Chandra Shukla vs. Union of India & Ors. (1985) 3  SCC 721 is a decision concerning the recruitment to the post of  Subordinate  Judges in Delhi Judicial Service.   There, a competitive examination was held  and 27 candidates qualified to be eligible for viva voce test.   A list was published  by the High Court  and the Full Court approved the list of the 27 qualified  candidates.   As per the rules, only  such candidates would be called for viva  voce who had obtained 50 per cent marks in each of the written papers and 60  per cent in the aggregate, excepting the candidates belonging to Scheduled  Castes and Scheduled Tribes in whose case the marks prescribed were 40 per  cent in each of the written papers and 50 per cent in the aggregate.     The  Selection Committee  called  for viva voce only such candidates who had  qualified written test as provided in the appendix.    The   Selection  Committee  noticed that some of the candidates who had otherwise secured very high marks,

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had to be kept out of the zone of consideration for final selection by reason of  their having secured one or two marks below the aggregate or the qualifying  marks prescribed for the particular paper.  So the Selection Committee decided  that moderation of two marks in each paper to  every candidate shall be done.    In view of the decision of the Selection Committee,  instead of 27 candidates, 31   candidates were called for interview.   This was challenged by some of the  candidates and this Court struck down the selection and held that the list  prepared by the committee after moderation of marks is liable to be struck down.    Addition of any marks by way of moderation  to  the marks obtained in any  written paper or to the aggregate of the marks in order to make a candidate  eligible to appear in the viva voce test would indirectly be an amendment of  clause (6) of the Appendix to the Delhi Judicial Service Rules, 1970 which is of  mandatory nature.   Such  amendment to the rules can be made under Article  234  only by the Lt. Governor  after  consulting the High Court in that regard.

In the above decision, minimum marks were prescribed for viva voce.   Apparently, the candidates who were later included in the list by the selection  committee had not secured the minimum marks to be qualified for viva voce.   The selection as such was done contrary to the rules of recruitment.   This  decision has no application to the case in hand.    There is no case that the  selection to the posts of  Civil  Judge (Jr. Division)  was held in contravention  of  any of the rules made under Article 234 of the Constitution.   As regards  the  appendix,  the Niyamavali 1951 gives the various subjects and the  qualifying  marks for each subject.   There is no case that these rules have been violated.   As already noticed, rule 19 of the  Niyamavali 1951 also is in no way violated in  the present selection process.

Another decision relied upon by the respondents’ counsel is Durgacharan  Misra vs. State of Orissa & Ors. (1987) 4 SCC 646.   The Orissa Judicial  Service Rules did not prescribe the minimum qualifying marks to be secured  at  the viva voce test for selection of Munsifs.   As per the Rules, the Commission  shall add the marks of the viva voce test to the marks in the written examination  and then the merit list is to be prepared on the basis of the aggregate marks  secured by the candidates.   The list so  prepared is to be forwarded  to the State  Government.   The Commission had no power to exclude the names of any  candidates from the selection  list merely because he has secured less marks at  the viva voce test.  Contrary to these Rules,  the Commission prescribed the  minimum marks for viva voce test and prepared the merit list.   This Court held  that the Rules have been framed under the Proviso to Article 309 read with  Article 234 of the Constitution in consultation with the High Court and the  appointments of persons to the Judicial Service of the State shall be made in  accordance with these Rules and the Commission shall select the candidates in  accordance with these rules and it cannot prescribe additional requirements  either as to eligibility or as to suitability  and the decision of the Commission  prescribing the minimum marks to be secured at the viva voce test  was held to  be illegal and without authority.   This decision has no application to the facts of  the present case.   In that case, the selection was made  against  the Rules  framed by the Governor under Article 309 read with Article 234 of the  Constitution.     Here, no such rules have been violated and as already noticed,  there was  no violation of Rule 19 of the Niyamavali 1951.

Reference  was also made  to the decision of this Court in State of Bihar  & Anr. Vs. Bal Mukund Sah & Ors.  (2000) 4 SCC 640.   The Bihar State  Legislature passed an enactment providing reservation to the extent of 50 per  cent for Scheduled Castes, Scheduled Tribes and OBCs in the Judicial Service.     This enactment was passed under Article 309 of the Constitution treating the  Judicial Service as part of the State Service.    Majmudar, J., speaking for the  majority of the Constitution Bench, observed  that ’Judicial Service’ only  earmarks the Members of that service and their appointment is to be made under  the rules made  under Article 309  read with Articles 233 and 234 of the   Constitution and  that any scheme of reservation foisted on the  High Court  without consultation with it directly results in truncating its power of playing a vital  role in the recruitment  of eligible candidates to  fill up the vacancies and hence  such  appointments of reserved posts would remain totally ultra vires  of the  scheme of the Constitution.  This decision also is of no assistance to the

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respondents.

It is important to note that under Article 320 of the Constitution, the Union  and the State Public Service Commission has been conferred with ample power  to conduct examinations for appointment to the services of the Union and to the  services of the State.   Of course, the power conferred on the Public Service  Commission shall not be used arbitrarily.   Similarly,  powers of superintendence,  direction and control of the preparation of the electoral rolls, for, and the conduct  of, all elections to Parliament and to the Legislature of every State have been   vested with the Election Commission.   While considering the parameters of the  powers of the Election Commission, this Court in  Mohinder Singh Gill & Anr.  vs. The Chief Election Commissioner, New Delhi & Ors. 1978(2) SCR 272  observed as under: "Even so, situations may arise which enacted law has not provided  for.  Legislators are not prophets but pragmatists.   So it is that the  Constitution has made comprehensive provision in Article 324 to  take care of surprise situations.   That power itself has to be  exercised, not mindlessly nor mala fide, nor arbitrarily nor with  partiality but in keeping with the guidelines of the rule of law and not  stultifying the Presidential notification nor existing legislation.   \005\005\005\005\005\005\005\005.   Article 324, in our view, operates in areas left  unoccupied by legislation and the words ’superintendence, direction  and control’ as well as ’conduct of all elections’ are the broadest  terms.   Myriad maybes, too mystic to be precisely presaged, may  call for prompt action to reach the goal of free and fair election."

The above observation made in the context of Article 324 would equally  apply to  Article 320 when it comes to the question of power of the Public Service  Commission.   The question, therefore, to be considered is whether the  U.P.P.S.C.  has exercised its  powers arbitrarily and whether adoption of scaling  system was with ulterior motives to give undue  preference to some candidates.

The U.P.P.S.C.  in its  Special Leave Petition as well as the rejoinder  affidavit filed before us has stated in detail as to how the scaling system was  applied and the circumstances which necessitated the adoption of such a  formula.    At the outset we must say that the scaling system,  which was adopted  by the U.P.P.S.C.  was not similar to the scaling system adopted by the Union  Public Service Commission.   The system adopted by U.P.S.C.  was challenged  by certain candidates in  a writ petition before the High Court of Gujarat.   The  Division Bench of the Gujarat High Court considered the question in detail  in  Kamlesh Haribhai Goradia vs. Union of India & Anr.  (1987) (1) GLR 157 and  held that the process of moderation was necessary to find out the merit of the  candidates inter se and the marks cannot be awarded till such uniformity is  achieved in the matter of assessment of the performance of the candidates at the  examination.   It, therefore, cannot  be said that there is any deviation so that the  Commission would not have  any authority or power to moderate the valuation of  the performance of the candidates at the written examination.

In the instant case also, the challenge of the respondents was that the  system of scaling was unreasonable and arbitrary and thus violative of Articles  14 and 16 of the Constitution.

As already noticed, the Proviso to Rule 51 of the UPPSC (Regulation of  Procedure and Conduct of Business) Amendment Act, 1976 gives power to the  Commission to eliminate variation in the marks awarded to the candidates and to  adopt any method, device or formula considered appropriate for  that purpose.    The system of scaling was intended to remove the disparity  in evaluation.   In  the case of Judicial Service examination, more than four thousand candidates  appeared.   The  answer papers were evaluated by 14 examiners.  Some  examiners  were liberal in awarding marks whereas some others were strict in  awarding marks.   The details given along with the Special Leave Petition show  the extent of difference in marks awarded by the examiners.  Table 1 on page 47  in SLP(C) No. 3758 of 2002 shows as follows:                                 Table-1  Subject \026 Present day                                Maximum Marks \026 150

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Examiner  no. No. of Scripts Examined Mean  marks of  the  examiner Standard  deviation  of the  marks  allotted Minimum  marks Maximum  marks After  Scaling Mean  marks of  the scaled  score After  Scaling  Standard  Deviation  of the   scaled  score        1    2    3    4   5   6    7    8  1 300 68.50 17.23 10 102 75.00 14.98  2 300 45.91 16.02   0   92 75.01 14.99  3 300 39.39 14.12   2   76 74.98 14.99  4 600

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35.07 21.64   0 105 74.99 15.00  5 300 52.16 20.66   0 112 75.00 15.03  6 300 53.55 13.84   7   94 74.97 14.99  7 300 66.17 27.15   8 134 75.00 15.01  8 300 70.09 13.65   0   97 75.04 14.98  9 300 35.94 10.74   9   77 74.96 14.99 10 300 81.74 15.95 25 125 75.02 15.01 11 300 77.45 15.68 26 125 74.99 15.01 12 300 49.98

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14.43 11   92 75.03 15.00 13 300 41.16 17.72   3   99 74.98 15.00 14 111 47.82 24.25   4 118 74.99 14.92

There is a vast percentage difference in awarding marks between each  set of examiners and this  was sought to be  minimised  by applying the scaling  formula.   If scaling method had not been used, only those candidates whose  answer sheets were examined by liberal examiners alone would get selected and  the candidates whose 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.   The counsel for the  respondents  could not demonstrate that the adoption of scaling system has in  any way caused injustice to any meritorious candidate.   If any  candidate had  secured higher marks in the written examination, even by applying the scaling  formula, he would  still be  benefited.

The Division Bench of the High Court observed that the process of scaling  was done examiner-wise only and the scaling formula did not take into  consideration the average of  Mean of  all the candidates in one particular paper  but took Mean of only that group of candidates which has been examined by one  single examiner.   The counsel for the U.P.P.S.C.  submitted that the observation  made by the High Court is incorrect.   The scaling formula was adopted to  remove the disparity in the evaluation of  14 examiners who participated in the  evaluation of answer sheets and the details have also been furnished as to how  the scaling formula was adopted and applied.    Therefore,  we do not think that  the observation of the Division Bench that the Commission did not take care of  varying standards which may have been applied by different examiners but has  sought to reduce the variation of the marks awarded by the same examiner to  different candidates whose answer sheets had been examined, is correct.   The  Division Bench was of the view that as a result of scaling, the marks of the  candidates who had secured  zero marks  were enhanced to 18 and this was  illegal and thus affected the selection process.    This finding is to be  understood  to mean as to how  the scaling system was applied. 18 marks  were given  notionally to a candidate who secured zero marks so as to  indicate the variation  in marks  secured by the candidates and to fix the Mean marks.

In that view of the matter, we do not think that the application of scaling  formula  to the examinations in question  was either arbitrary or illegal.   The  selection of the candidates was done in a better way.   Moreover, this formula  was adopted by the U.P.P.S.C.   after  an expert study and in such matters, the  Court cannot sit in judgment and interfere with the same unless it is proved that it  was an arbitrary and unreasonable exercise of power and the selection  itself  was done contrary to the rules.     Ultimately, the agency conducting the  examination has to consider  as to which method should be preferred and  adopted having regard to the myriad situations that may arise before them.

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The U.P.P.S.C.  has applied the scaling formula and prepared the merit  list of various candidates for the three examinations, namely, the Provincial Civil  Services (Executive Branch), Main Examination, 2001; Provincial Civil Services  (Executive Branch) Preliminary  Examination,  2002; and  the U.P. Civil Judge  (Jr. Division) Examination.

The Division Bench of the High Court was not justified in interfering with  the merit list  prepared by the Commission.   Therefore, we set aside the  judgment of the High Court and direct that the merit list prepared by the  Commission shall prevail in the case of all the three examinations referred to  above.   The appeals are accordingly allowed.     Parties  to bear  their own  costs.