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2013 DIGILAW 884 (GAU)

Zairemsangpuii & Anr. v. State of Mizoram & Ors.

2013-12-19

K.SREEDHAR RAO, M.R.PATHAK

body2013
Sreedhar Rao, J:- 1. The facts and subject-matter of both the petitions are similar, hence, both the petitions are heard together. In both the petitions, the validity of Mizoram Judicial Service Rules, 2006 ('2006 Rules') and the method of selection to the post of Civil Judges conducted in the year 2008 are under challenge. 2. The petitioners contend that the formula given in the Rule for assessment of the merit of a candidate at the written test is illegal and arbitrary and violates article 14 of the Indian Constitution. The petitioners submit that by adopting the formula, the candidates, who have secured less mark in the written examination, have been selected whereas the petitioners securing the higher marks than the selected ones have been denied appointment. Hence, the selection of the Civil Judges held in the year 2008, is assailed as illegal. 3. In WP(C) No. 4415 of 2008, the respondent Nos. 1 and 2 are the State Authorities and the respondent No. 3 is the Chairperson, Mizoram Public Service Commission, the respondent Nos. 4 to 20 are the selected candidates and respondent No. 21 is the Gauhati High Court. In WP(C) No. 502 of 2009, the respondent Nos. 5 to 16, who are called for the interview on the basis of the marks obtained in the written examination, are the finally selected candidates and respondent No. 4 is the Gauhati High Court. The validity of the 2006 Rules and selection process is under challenge in both the petitions. 4. In the course of the proceeding in WP(C) No. 4415 of 2008, the petitioners Nos. 1 to 4 have withdrawn the petition. 5. Rules 9 and 11 of 2006 Rules prescribes that direct recruitment of the Civil Judges would be on the basis of aggregate marks obtained in a competitive examination by the Commission as indicated in Schedule B of the Rules. Rules 9 and 11 and also the relevant portion of the Schedule B are extracted hereunder: "9. 5. Rules 9 and 11 of 2006 Rules prescribes that direct recruitment of the Civil Judges would be on the basis of aggregate marks obtained in a competitive examination by the Commission as indicated in Schedule B of the Rules. Rules 9 and 11 and also the relevant portion of the Schedule B are extracted hereunder: "9. Method of Recruitment, Qualification and Age Limit: In respect of each category of the Cadre specified in column (2) of the Table below, the method of recruitment and minimum qualification, age limit, etc., are as shown in the corresponding entries in columns (3) and (4) thereof: Provided that the High Court shall have the power to relex the qualifying service of Judicial Officer for the purpose of promotion in case the same is considered neceasary in the interest of service. SI.CadreMethod of Recruitment Qualification, age limit etc. 1234 1.District Judge(i) Not exceeding 25% of the posts in the cadre may be filed by direct recruitment on the basis of the aggregate marks/grade secured in a competitive examination conducted by the High Court as specified in Schedule-b these rules.By direct recruitment 1. Must be holder of degree in Law of a recognized University. 2. Must be practicing as and Advocate in Courts of Civil and Criminal Jurisdiction on the last date fixed for receipt of applications and must have so practiced for a period not less than seven years as on such date. 3. Must have attained the age of 35 (thirty five) years and must not have attained the age of 48 (forty eight) years in the case of candidates belonging to Scheduled Tribes and forty five years in the case of others, as on the last date fixed for receipt of applications. 4. Must possess knowledge of Mizo Language at least Middle School standard. (ii)...1. ........................ (iii)1. ........................ 2.Civil Judge (Sr. Divn)By promotion from the cadre of Civil Judges of the services on the basis of merit-cum-seniority by the High Court following the criteria in Schedule-E.By promotion: 1. Must have been in the Cadre of civil Judge for a period not less than 7 years regular service. 3.Civil JudgeBy direct recruitment on the basis of aggregate marks obtained in a competitive examination conducted by the Commission as indicated in Schedule-B of these rules.By direct recruitment. 1. Must be holder of degree in law of a recognized University. 2. Must have been in the Cadre of civil Judge for a period not less than 7 years regular service. 3.Civil JudgeBy direct recruitment on the basis of aggregate marks obtained in a competitive examination conducted by the Commission as indicated in Schedule-B of these rules.By direct recruitment. 1. Must be holder of degree in law of a recognized University. 2. Must not have attained the age of 35 (thirty five) years. 3. Must not have completed 40 years of age in the case of candidates belonging to Scheduled Castes or Scheduled Tribes and 35 years of age in the case of others as on the last date fixed for receipt of applications. 4. Must process knowledge of Mizo language of at least Middle standard. 11. Recruitment: (I) To fill a vacancy required to be filled by promotion, the recruiting authority shall take all necessary steps well in advance so as to finalize the list of person considered eligible for promotion at least 10-15 days before the occurrence of the vacancy. (2)(i) Whenever two or more vacancies required to be filled by direct recruitment occurs in a cadre in the service or once in two years, whichever is earlier, the recruiting authority shall, invite by advertisement and in at least two Local/National news papers in two consecutive issue, applications in such form as it may determine from intending candidates, who possess the prescribed qualifications. The advertisement shall indicate the number of vacancies and shall contain all necessary information relating to the recruitment. It shall also indicate that an additional list of selected candidates would be prepared as per clause (iv). (ii) The decision of the recruiting authority as to the eligibility or otherwise of a candidate for admission to the written and viva voce examination shall be final. No candidate to whom Certificate of admission has not been issued by the recruiting authority shall be admitted for the examination. (iii) The recruiting authority shall, on the basis of cumulative grade value secured by a candidate, prepare in the order of merit, assessed as provided in Schedule-B, a list of candidates to be included in the list which shall be equal to the number of vacancies notified. (iii) The recruiting authority shall, on the basis of cumulative grade value secured by a candidate, prepare in the order of merit, assessed as provided in Schedule-B, a list of candidates to be included in the list which shall be equal to the number of vacancies notified. (iv) The recruiting authority shall, in accordance with the provisions of clause (iii), also prepare an additional list of names of candidates not included in the list of candidates prepared under clause (iii) above, for which the number of candidates to be included, shall, as far as possible, be ten per cent of the number of vacancies notified for recruitment or one, whichever is higher. (v) The lists so prepared under clauses (iii) and (iv) above shall be published for general information and they shall cease to be operative on the expiry of one year from the date of such publication. (vi) Candidates whose names are included in the list prepared under clause (iii) above shall be considered for appointment in the order in which their names appear in the list and subject to rule 10, they may be appointed by the appointing authority in the vacancies notified under clause (i) above. Candidates whose names are included in the additional list prepared under clause (iv) may be similarly appointed after the candidates whose names are included in the list published under clause (iii) above have been appointed. (vii) Inclusion of the name of a candidate in any list prepared under clause (iii) or.(iv) above shall not confer any right of appointment to such candidate." SCHEDULE 'B' Evaluating performance in Competitive Examination for appointment to the Judicial Service. The system operates as follows: (1) The question in the question paper may carry numerical marks for each question. (2) The examiner may assign numerical marks for each sub-question which may be totaled up and shown against each full question in numbers. (3) The tabulator will then convert the numerical marks into grade in a seven point scale with corresponding grade values as follows:- Percentage of marksGradeGrade Value 70% and aboveO7 65% to 64%A+6 60% to 64%A5 55% to 59%B+4 50% to 54%B3 45% to 49%C+2 40% to 44%C1 Below 40%F0 6. Mr. K.N. Choudhury, Additional Advocate General, Assam, Mr. M.K. Sharma, Advocate General, Mizoram, Mr. S. Shyam, Standing Counsel, Gauhati High Court, Mr. A.M. Buzarbaruah, Additional Advocate General, Arunachal Pradesh, Ms. Mr. K.N. Choudhury, Additional Advocate General, Assam, Mr. M.K. Sharma, Advocate General, Mizoram, Mr. S. Shyam, Standing Counsel, Gauhati High Court, Mr. A.M. Buzarbaruah, Additional Advocate General, Arunachal Pradesh, Ms. T. Khro, Senior Government Advocate, Nagaland and Mr. M. Das, Advocate of the private respondent have addressed their arguments. Mr. B. Chakraborty, counsel for the petitioners has argued for the petitioners in both the writ petitions. 7. It is the contention on the part of the State authorities that the selection process has been conducted strictly in compliance with the prescribed Rules. The Rules have also been framed in consultation with the High Court, therefore, there is no flaw in the method of selection, nor there is any mala fide. The formula provided in the Rules for assessing the merit of the candidate at written examination is followed. The formula has been prescribed in accordance with the decision of the Supreme Court, in U.P. Public Service Commission v. Subhash Chandra Dixit And Others, (2003) 12 SCC 701 , the method of scaling" formula has been approved to be a valid method in assessing the merit, when the papers are valued by different examiners in order to obviate the examiner variability, the scaling formula has been held to be a proper method for assessment of merit at the written examination. The formula given in the Rules broadly corresponds to the scaling method and it has been approved by the Supreme Court in Subhash Chandra Dixit case. Therefore, the petitioner are neither entitled to challenge the validity of the Rules nor the selection process, based on the Rules. 8. Sri K.N. Choudhury also relied upon the decision of the Supreme Court in Sanjay Singh and Another v. U.P. Public Service Commission, Allahabad and Another, (2007) 3 SCC 720 , to contend that in order to overcome the examiner variability, the Supreme Court has laid down two methods to obviate the anomalies, one being the moderation and the other being scaling method. In that view of the matter, it is strenuously submitted that the selection process is done well in accordance with law and that the Rule, in question is intra vires. 9. The facts of the case disclose that the notification was issued for filling up of 13 posts and total 72 candidates had appeared in the written test. In that view of the matter, it is strenuously submitted that the selection process is done well in accordance with law and that the Rule, in question is intra vires. 9. The facts of the case disclose that the notification was issued for filling up of 13 posts and total 72 candidates had appeared in the written test. Out of 17 candidates, who have been called for interview, 12 candidates were selected, who are respondent Nos. 5 to 16 in WP(C) No. 502 of 2009. 10. The tabular columns of the names of the candidates in WP(C) No. 4415 of 2008, who appeared in the examination and the raw marks obtained by them at the examination and the grades given to them as per the formula envisaged in the Rule is extracted below: Sl. NoRoll No.NameGKEng.Law-1Law-IITotal %ageCGVAVivaGrandTotal PETITIONER/APPELLANT/APPLICANT 1.24Hmingthanpuii Ratle 3622535516641.52.84 2.68R. Lalhmingmawia3024535215939.752.37 3.52Lalrinpuii3548525018546.252.98 4.18H. Lalchhuanawma4425484616340.752.95 5.92Zairemsangpuii2513524813834.52.07 6.85Vanlahlimpuii33364740156392.49 RESPONDENT/OPPOSITE PARTY MARKS OBTAINED 14Birthoilal4221555317142.753.2139.5210.5 Sakachep 2.6C. Lalremruati42325452180453.0830.5210.5 3.8C. Lalzamliana4922544817343.253.2627200 4.14F. Lalengliana4735423716140.253.2339200 5.17Gracy L. Bawitlung4336495418245.53.1549231 6.31Joseph Lalremliana4243414016641.53.1840206 7.33Julie Lalrinzami 3947645720751.753.5046253 8.37K. Lalmunhlima 49354848180453.2129.5209.5 9.42Laldinpuia50385042180453.2850.5230.5 10.47Lalngaihmawia6241525220751.753.7744251 1149Lalramsanga46434954192483.4338230 1254Lalrochami4135554617744.253.1350227 1365Ngursangzuali Sailo3731605518345.753.1152235 1472R. Malsawmdawngzuala44275051172433.1336.5208.5 1583T. Lalhmachhuana46264350.5165.5.41.3753.2344.5210 1684Thomas Lalrammawia4137494617343.253.1735.5208.5 1790Vincent Lalrokima5133553917844.53.3043.5221.5 11. In WP(C) No. 502 of 2009, the petitioner had obtained 177 raw marks in the written examination and according to the formula; she was given Grade c+. All the petitioners, because of the low grade obtained compared to the respondents, who obtained the higher grade, are not called for interview. 12. In the present case, the valuation of the papers have been done only by one examiner, no multiple examiners have valued the same subject paper. The Supreme Court, in Sanjay Singh case has copiously analyzed the law in respect of valuation of the written papers, the pros and cons of the moderation method and scaling method is discussed with reference to examiner variability. It is taken into consideration that when one subject paper is valued by multiple examiners, there would be non-congruence in assessment of the merit. Some examiner may be strict and some examiner may be liberal. In order to obviate the anomalies,"a system of scaling method or a moderation method is adopted by the Public Service Commission. In Subhash Chandra Dixit case, the Supreme, Court had approved the scaling method when multiple examiners evaluate the same subject paper. Some examiner may be strict and some examiner may be liberal. In order to obviate the anomalies,"a system of scaling method or a moderation method is adopted by the Public Service Commission. In Subhash Chandra Dixit case, the Supreme, Court had approved the scaling method when multiple examiners evaluate the same subject paper. However, in Sanjay Singh case, the Supreme Court has made, a deep analysis of the merits and demerits of the scaling method in order to overcome the problem of examiner variability. The Supreme Court suggested that moderation" method would be more appropriate to overcome the problem of examiner variability. The Supreme Court has also practically considered a different situation with illustrations in the judgment to come to the conclusion that the scaling method has lot of limitations and demerits and is not effective enough to overcome the problem of examiner variability, thus, suggested that moderation method would be more appropriate. 13. The Supreme Court in paragraphs 23 and 33 of Sanjay Singh case has made the following observations “23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer-scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the paper-setter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation. But where a large number of candidates take the examination, it will not be possible to get all the answer-scripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the paper-setter (or other senior person) acting as the Head Examiner. When more than one examiner evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer-scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably, therefore, even when experienced examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is ‘Hawk-Dove effect’. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. This apart, there is ‘Hawk-Dove effect’. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is 'reduced valuation by a strict examiner and 'enhanced valuation by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variability' is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows: (i) The paper-setter of the subject normally acts as the Head Examiner for the subject. He is selected from amongst senior academicians/scholars/ senior civil servants/Judges. Where the case of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation. (ii) The achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weight-age to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the Valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the Valuation of answer scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary. (iii) After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer scripts and some answer books selected at random from the batches of answer scripts valued by each examiner. The top level, answer books of each examiner are revalued by the Head Examiner who carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks etc. may also be prepared in respect of the valuation of each examiner.) (iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggest upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the tdp level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner. In regard to the tdp level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner. (v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner, for which it is not feasible to have any standard moderation, the answer scripts valued by such examiner are revalued either by the Head Examiner or any other Examiner who is found to have followed the agreed norms. (vi) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the Examiners. In such a situation, one more level of Examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners, in turn, is checked by a Chief Examiner to ensure proper results. The above procedure of 'moderation' would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity. 33. The reason given for introducing scaling is to cure the disparity on account of strictness or liberality of the examiners. But the effect of the scaling formula adopted by the Commission is to average the marks of a batch of candidates and convert the raw marks of each candidate in the batch into scaled marks with reference to the average marks of the batch and the standard deviation. The scaling formula, therefore, does not address or rectify the effect of strictness or liberality of the examiner. The scaling formula is more suited and appropriate to find a common base and inter se merit where candidates take examinations in different subjects. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations." 14. As the scaling formula has no nexus or relevance to give a solution to the problem of eliminating the variation or deviation in the standard of valuation of answer scripts by different examiners either on account of strictness or liberality, it has to be concluded that scaling is based on irrelevant considerations and ignores relevant considerations." 14. In the context of the law laid down by the Supreme Court, the present formula prescribed in the Rules for assessment of the merit of the candidate at the written examination, if considered, the Rule appears to be illegal and ultra vires the Constitution. 15. Grade Value 7 is given to candidates, who secure 70% and above marks, Grade Value 6 is given to persons, who secure between 65% and 69% of marks. Grade Value 5 is given to candidates, who secure marks between 60% and 64%, Grade Value 4 is given to persons, whose mark is between 55% and 59%, Grade Value 3 is for candidates, whose mark is between 50% and 54%, Grade Value 2 is given to those, whose mark is between 45% and 49% and whose mark is between 40% and 44%, the Grade Value is 1. The formula virtually is akin to the scaling method. Although candidates, who secure more raw marks in the written examination by virtue of scaling down, they will be put on at par with the persons, who secure minimum marks of that Grade. There appears to be no rational in the rule to keep the persons, getting lesser marks, with the persons getting higher marks in the same Grade at the written examination. The formula, which directs reducing the raw marks and placing the candidates getting higher marks with candidates getting lesser marks at the same Grade, is discriminatory and violative of article 14 while assessing the merit of the candidate. 16. In fact, scaling and moderation method are to be adopted when a subject paper is valued by more than one examiner. In the instant case, only one examiner has valued the subject papers, therefore, question of examiner variability does not arise. The formula, without taking into consideration the applicability of examiner variability directing the Grading method, which is fallacious and arbitrarily reduces the marks of the candidates and keeps on par with persons, who scored the lowest marks in that Grade. In the instant case, only one examiner has valued the subject papers, therefore, question of examiner variability does not arise. The formula, without taking into consideration the applicability of examiner variability directing the Grading method, which is fallacious and arbitrarily reduces the marks of the candidates and keeps on par with persons, who scored the lowest marks in that Grade. The Grading formula prescribed in the Rule is akin to the scaling method. It maybe that a candidate, who scores the highest mark in the Grade and his paper might have been valued by a person, who is supposed to be a strict examiner and a person, who gets the lowest mark in the Grade, his paper might have been valued by a liberal examiner. There cannot be any presumption that the person secured higher or the highest mark in the Grade, his paper is valued by a liberal examiner, thereby arbitrarily scaling down the mark of a person in a Grade and make it level with the lowest mark, is arbitrary and violates article 14 of the Constitution. More so, in the present case, there is no. problem of examiner variability. Therefore, the application of the formula of assessing the merit at the written test is bad in law and, therefore, the formula suggested in the Rule to that extent, is violative of article 14 of the Constitution and accordingly struck down. 17. As suggested by the Supreme Court, when there are multiple examiners valuing the same subject paper, moderation formula is to be adopted and it is held to be more suitable and proved to be the best formula in assessment of the merit. The law laid down by the Supreme Court in Sanjay Singh case necessarily has to be followed being the law of the land under article 141 of the Constitution of India. 18. The petitioner Nos. 2 and 3 in WP(C) No. 4415 of 2008, in fact, have obtained higher raw marks than the candidates, who are called for interview and the petitioner No. 1 has secured law marks equivalent to respondent No. 9, who is called for interview. The other petitioners are concerned; the marks obtained by them are below the marks obtained by the respondents, who are called for interview. Since the petitioner Nos. The other petitioners are concerned; the marks obtained by them are below the marks obtained by the respondents, who are called for interview. Since the petitioner Nos. 1 to 4 in WP(C) No. 4415 of 2008 have withdrawn the petition, therefore, their petition have to be dismissed and other petitioners, who are prosecuting would not be entitled to any relief because the raw marks obtained by them are below the raw marks obtained by the respondents. Accordingly the WP(C) No. 4415 of 2008. 19. In WP(C) No. 502 of 2009, the raw marks obtained by the petitioner is higher than some of the respondents, who are called for the interview, therefore, it is just and necessary that the petitioner should be interviewed and upon assessment of her merit in viva voce, the selection is to be made in accordance with law. 20. The respondents, who are selected, are already in service for the past 5 years. The Supreme Court in Sanjay Singh case in a similar situation held that the persons, who have been selected, need not be disturbed and directed that the petitioners in the cited case should be appointed to the vacant post. 21. In the present case, the total cadre strength is 34, 13 posts are filled up in respect of 21 posts, stay has been granted by the Supreme Court for selection. In that view of the matter, it is directed that in the event the petitioner becomes eligible for selection, subject to her performance in viva voce, the State shall create superannuary post and shall appoint the petitioner in WP(C) No. 502 of 2009, subject to the result of the case pending before the Supreme Court with reference to 21 posts where stay is granted. In the event appointments of these petitioners to superannuary posts in future, it can be adjusted towards the regular vacancies. 22. Accordingly the WP(C) No. 502 of 2009 is allowed in the terms indicated above. 23. The ratio laid down shall have prospective application for future appointment and it will not affect the appointments already made.