Judgment Nagendra Rai, J. 1. The petitioners are the applicants in the 44th Combined Written Examination held for appointment to the various services under the executive branch. They originally filed the writ application to declare the result of the 44th Combined (Written) Examination published by the respondent-Bihar Public Service Commission (hereinafter referred to as the Commission) on 20th January, 2004 as illegal, to declare the holding of interview which is going to be held from 9.2.2004 pursuant to the result of the 44th Combined Competitive (Written) Examination published on 20.1.2004 as illegal and also for a direction to the Commission to publish the result of the written examination on the basis of original evaluation. Later on, they filed the supplementary affidavit challenging the result of the interview held from 9.2.2004 to 13.2.2004 and the publication of the final result of the said examination on 15.2.2004. 2. The main attack to the result of the 44th Combined Written Examination published on 20.1.2004 on the part of the petitioners is on two grounds. Firstly that once the answer sheets were evaluated by the co-examiners and the head examiners. the same cannot be re-evaluated again in the absence of any provision in the rules framed by the Commission and secondly that re-evaluation was done to eliminate certain candidates by decreasing their marks and to facilitate certain candidates by increasing their marks at the instance of two members of the Commission, namely, Mr. Dev Nandan Sharma, respondent No. 5 and Mr. Shiv Balak Choudhary, respondent No. 6 as some of their relations/favorite became successful as a result of re-evaluation. 3. The factual matrix of the present case are that the Commission issued an advertisement for holding 44th Combined Examination for appointment to different posts in the executive branch and the written examination was held from 31.5.2002 to 30.6.2002. There were two compulsory subjects, out of which Hindi was a qualifying subject. There were 36 optional subjects and each candidate was required to take two optional subjects out of 36. The total aggregate marks was 1200 and for interview was 150. It is also admitted position that except three subjects, namely, Labour and Social Welfare, Anthropology and Literature, which were sent outside for re-evaluation, evaluation of other papers was done by the co-examiners under the guidance of Head examiner in the premises of the Commission. 4. The total aggregate marks was 1200 and for interview was 150. It is also admitted position that except three subjects, namely, Labour and Social Welfare, Anthropology and Literature, which were sent outside for re-evaluation, evaluation of other papers was done by the co-examiners under the guidance of Head examiner in the premises of the Commission. 4. The case of the petitioners is that the evaluation was done by the examiners under the guidance of head examiners and answer scripts were scrutinised by the staff of the Commission to ensure that there is no mistake in addition or no portion of the answers is unevaluated. Thereafter tabulation sheet and merit list were prepared and qualifying candidates were identified. The number of candidates called for interview was 2.5 times of the vacancies. Thus, the result based on the original evaluation was made and became known. Thereafter, he Acting Chairman and the members having noticed that some of their relations and favoured candidates are not within the qualifying zone, they again engaged fresh local persons who tampered/manipulated/changed the marks sheets. The marks of their favoured candidates were increased whereas the marks of earlier qualifying candidates were decreased to drive them out of the qualifying list. The petitioners have given the list of persons whose marks were increased and decreased. The entire allegation is made in paragraphs 15 to 18 of the writ application. Their further cases is that as there is no provision for re-evaluation, the subsequent re-evaluation by the examiners was impermissible and entire examination is vitiated. This apart, malafide act of two members has also vitiated the result. 5. The petitioners have also filed supplementary affidavit and reiterated the same facts by giving some instances and the order passed by this Court in several cases holding that there is no provision for re-evaluation of the answer sheets by the Commission. 6. The stand of the Commission from the various counter affidavits and reply are that the Commission denied all the allegations. It is stated that after evaluation, each answer book is scrutinised to detect mistake, if any, committed during evalua tion. Any such mistake is removed or corrected by the examiners or the Head examiners. This practice is being done for all the examinations, such as in the 41st Combined Competitive Examination as well as also in the 42nd Combined Competitive Examination. The same practice has been adopted without any discrimination. Any such mistake is removed or corrected by the examiners or the Head examiners. This practice is being done for all the examinations, such as in the 41st Combined Competitive Examination as well as also in the 42nd Combined Competitive Examination. The same practice has been adopted without any discrimination. In the instance case also after evaluation, scrutiny was done on the coded answer scripts and the identification of the candidates remained secret. In fact, decoding is done at the end in the presence of the Controller of the Examination and the members of the Commission and thereafter the result is prepared and approved by the Full Commission. Thus, till the last day, no body knows the marks of the written examination. This system has been adopted by the Commission for all the examinations. The question of re-evaluation comes only after result is published and here nothing has been done after the publication of the result. Thus, there is no question of re-evaluation. The further case is that as soon as the result of the written examination is prepared and approved by the Commission, the same is sealed on the same day. The seal is only broken after the interview is over and the final result is prepared. No body has access to the merit list. This Court in CWJC No. 10610 of 1999 has approved the power of the Commission to moderate the answer books. The Commission in its meeting held on 6.8.2003 having noticed that there are 36 subjects and in the process of checking, it was found that in some of the subjects very high marks have been obtained while in others lessor marks have been obtained and in order to remove any anomalies or mistake, the decision of moderation was taken with regard to 44th Combined Competitive Examination like earlier examinations. A copy of the decision dated 6.8.2003 has been annexed as Annexure-D to the supplementary counter affidavit filed on behalf of the Commission on 12.3.2004. The allegations made in paragraphs 15 to 18 were also denied with regard to showing favour to certain candidates and disfavour to certain candidates. 7. Two members of the Commission have also filed affidavits denying the allegations of showing any favour to any of the candidates or any of their relations were candidates in the examination. 8. The allegations made in paragraphs 15 to 18 were also denied with regard to showing favour to certain candidates and disfavour to certain candidates. 7. Two members of the Commission have also filed affidavits denying the allegations of showing any favour to any of the candidates or any of their relations were candidates in the examination. 8. Some of the successful candidates filed interlocatory applications for vacating the stay order and they have also supported the case of the Commission and denied the allegations as made by the petitioners. 9. Learned counsel appearing for the petitioners submitted that there being no power of re-evaluation, remarking of the answer sheets after evaluation of the answer sheets by the co-examiners under the guidance of head examiner is impermissible in law. He further submitted that when there was no complaint by any of the persons concerned, the decision taken by the Commission for re-evaluation or moderation is impermissible specially when no reason has been assigned for moderation vide Annexure-D to the counter affidavit filed on behalf of the Commission. The decision which has been relied upon by the Commission, vide Annexure-D is not a decision. By reference to the marks obtained by several candidates which have been detailed in several documents appended to the writ application, he has shown that the marks have been increased or decreased to a great extent to disfavour and favour the candidates. 10. Learned counsel appearing for the Commission fairly agreed that there is no power of re-evaluation and that has been the consistent stand of the Commission and the present case is not a case of re-evaluation but when the Commission found that there being different optional subjects and in some subjects high marks were awarded and for that reason, the Commission held a meeting and took a decision on 6.8.2003 that there may not be any inconsistency in the marks awarded by the examiners, let moderation be done and accordingly, moderation was done. In other words, it was a case of moderation or scaling down and not the case of ro-evaluation. He also submitted that it is not necessary that specific complaint bo made before the Commission for taking a decision for moderation or scaling down. The Commission during course of examination having noticed inconsistency in the award of marks in different subjects, held a meeting and took a decision. He also submitted that it is not necessary that specific complaint bo made before the Commission for taking a decision for moderation or scaling down. The Commission during course of examination having noticed inconsistency in the award of marks in different subjects, held a meeting and took a decision. It is not necessary that reasons like judgment should bo mentioned in the order taking by the Commission. The decision contained in Annexure-D to the writ application is a decision of the entire body of the Commission and the decision which was in existence at that time and the contrary assertion is incorrect. He also submitted that the Commission is a constitutional body and it has responsibility to hold a fair examination and to achieve the fairness, if it has decided that scaling down or moderation be made the same cannot be termed arbitrary. 11. The Commission is a constitutional body and it has been given power to conduct the examination to the services of the State. While conducting examination, the Commission is required to conduct the examination in a fair manner with a view to keep confidence in the people in the examination. It has not to act malafide or arbitrarily. In case when the action of the Commission is found to be malafide or arbitrary or against the rules, the court will interfere in such matter but ordinarily, the court will not interfere only on the basis of bald allegation of malafide unless there are materials of conclusive nature to prove the allegation. For conducting a fair examination, the Commission may set up the rules but it may not visualise all the situations being a prophet and as such in a changing situation, it may take a new decision to meet the situation. However, that decision should not be contrary to the mandatory rules but it cannot be said that if the Commission finds that new situation demands immediate decision having a fairness in the examination, such decision cannot be interfered by the court only on the ground that another reasonable view can be taken by the court. 12. However, that decision should not be contrary to the mandatory rules but it cannot be said that if the Commission finds that new situation demands immediate decision having a fairness in the examination, such decision cannot be interfered by the court only on the ground that another reasonable view can be taken by the court. 12. At the outset, it should be made clear that under the Rules of the Commission there is no power of re-evaluation and this question cannot detain us in view of the consistent stand taken by the Commission at several places including in the case of Pramod Kumar Srivastava V/s. Chairman, Bihar Public Service Commission, Patna and others, Civil Appeal No. 5046 of 2004 which has been disposed of by the Supreme Court on August, 6, 2004, reported in (2004)6 Supreme Court Cases 714 [: 2004(4) PLJR (SC) 88] wherein relying upon the affidavit filed by the Commission, the Supreme Court held that no candidate has got any right whatsoever to claim or ask for re-evaluation of his marks and the judgment rendered by the LPA Bench setting aside the order of the learned Single Judge was upheld. 13. Thus, it has to be considered as to whether the steps taken by the Commission is re-evaluation or not. If it is a case of re-evaluation, then that is not permissible. If it is case of moderation or scaling down in terms of the decision taken by the Commission on 6.8.2003, Annexure-D to the counter affidavit, then the same is permissible in law. 14. The case of the Commission is consistent from the very beginning that after the evaluation of the answer sheets of the many candidates, the Commission found that in many of the subjects high marks were given by the examiners and in some subjects, low marks were given. Thus, there was a case of inconsistency in awarding marks causing hardship to several candidates in spite of the fact that they had done very good in their subjects and, accordingly, decided that moderation or scaling down be done. The said decision of the Commission is being followed since several examinations. The question is as to whether that is permissible or contrary to law. Nothing has been pointed out by the learned counsel for the petitioners that that is contrary to any rules of the Commission. The said decision of the Commission is being followed since several examinations. The question is as to whether that is permissible or contrary to law. Nothing has been pointed out by the learned counsel for the petitioners that that is contrary to any rules of the Commission. The said decision of the Commission appears to have been taken to have a fairness in the examination and to do justice to the candidates and this court does not find anything in the said decision to come to the conclusion that the same is arbitrary or impermissible in law. 15. The Apex Court in the case of U.P. Public Services Commission V/s. Subhash Chandra Dixit and others, reported in 2003 AIR SCW 5844, while considering the rules of U.P. Public Services Commission upheld the scaling formula by which the scaling of marks awarded by the examiners was done for uniformity in awarding of marks. 16. Thus, it is difficult to accept the submission advanced on behalf of the petitioners that the course adopted by the Commission is a re-evaluation. In fact, the moderation was done which is a reasonable procedure adopted by the Commission to minimise the injustice being done to the candidates on account of inconsistency in the marks allotted to them in different subjects. 17. Detail submissions have been advanced by the learned counsel for the petitioners by referring to the cases of the candidates mentioned in paragraph 18 to the writ application to show that some candidates have been favoured by increasing their numbers whereas some candidates were disfavoured by decreasing their numbers. In the affidavit filed by the petitioners, it is stated that the said information is true to the knowledge which cannot be because the petitioners are not supposed to know the marks allotted to the candidates, but we are not inclined to reject the said plea only on the ground of this technicality. Coming to the merits of the matter, when learned counsel for the petitioners referred to certain answer books of some of candidates showing that they have been favoured by increasing their numbers and some of them have been disfavoured by decreasing their numbers, we asked the Commission to produce the answer books of those candidates and we got the same examined by a set of examiners by calling them from reputed colleges and they stated that evaluation is correct. This we did it only to satisfy our conscious. 18. The allegation of malafide has been made against two members of the Commission as mentioned above that some of relations not direct but indirect, has been favoured. They have denied the said allegation by filing affidavit. Mere assertion of malafide without any proof leads nowhere. It is easy to make the allegation of malafide but it is difficult to prove it. The petitioners have not discharged their onus to prove the malafide and in view of the assertion and denial with regard to said allegation, we are not persuaded to accept the submission advanced on behalf of the petitioners. 19. The Commission has given reasons for taking the decision for moderation and as such the submission made with regard to the same by the petitioners deserves rejection. 20. Accordingly, there is no merit in this writ application and the same is dismissed and the interim order stands vacated. S.N.Hussain, J. 21 I agree.