1. The original petitioner, being aggrieved by the order of the learned Single Judge of October 4, 1985 dismissing his Special Civil Application praying fur appropriate writs, orders and directions to quash and set aside the moderation of his marks made by the Union Public Service Commission respondent No. 2 herein and to declare his result according to his original marks and for enjoining respondent No, 2-Commission to restore his original marks before the impugned moderation and consequently to modify the the merit list accordingly and for enjoining the Union of India to allocate the petitioner to Indian Administrative Services and to grant him suitable State cadre in light of his appropriate ranking on the basis of his original marks. A few facts need be noticed in order to understand the grievance of the petitioner in this appeal.

2. The petitioner is a Commerce Graduate belonging to general category and was eligible to appear at the Civil Services Common Examination held by the Union Government for the year 1984 for purposes of recruitment to Indian Administrative and allied Services. The competitive examination comprises two successive stages, namely; (1) Civil Services Preliminary Examination-(Objective Type) for the selection of candidates fur the main examination, and (2) Civil Services Main examination (Written and Interview) for the selection of candidates for the various services and posts. The Preliminary Examination consists of two papers of objective type (multiple choice questions) in the two subjects, namely, General Studies and ore to be selected from the list of optional subjects set out in para 2 of the plan of examinations notified by the Union Government which carried 150 and 300 marks respectively. The marks obtained in this preliminary examination are not considered and counted for determining the final order of merit of successful candidates in the main examination. The candidates who are declared successful in the Preliminary Examination are required to appear at the Main Examination which consists of written examination as well as viva voce test The written examination consists of eight papers, namely, two papers each for two optional subjects; two papers in General Studies; one paper in Compulsory English and one paper in Regional Language The marks in the paper of Compulsory English and Regional Language are not counted for purposes of ranking in the examination. Each of the papers in optional subjects and in General Studies carried 300 marks thus totalling to 1800 marks in all. The viva voce test carried 250 marks. The marks obtained by a candidate in the Main Examination (written as well as viva voce) would determine his final ranking and the successful candidates are allotted to various services having regard to their ranking in the examination and the preferences expressed by them for various services and posts. The candidates are permitted to opt for the purposes of answering question papers any one of the languages included in the VIIIth Schedule to the Constitution or English as they may select.

3. The petitioner appeared at the Preliminary Examination held in 1984 and selected History as his optional subject with General Studies paper being common subject. He was declared successful in the Preliminary Examination and held to be qualified to appear at the Main Examination. His roll No. at the Main Examination was 62416 at Ahmedabad Centre. The petitioner opted for Gujarati language as his medium for answering the question papers, except for the paper of Compulsory English. His optional subjects at the Main Examination were History and Gujarati literature. He was accordingly required to appear in General Studies Paper I, General Studies Paper II, History Paper I, History Paper II, Gujarati Literature Paper I. Gujarati Paper II, Compulsory English and the paper for Regional Language, namely, Gujarati. The main Examination was held in November/ December, 1984 and the result thereof was declared some where in the month of March, 1985. The petitioner was declared successful in the written examination as intimated to him by the UPSC vide its letter of March 30, 1985. He was called for the viva voce test before the Interview Board of the UPSC constituted for interviewing candidates declared successful in the written test of the Main Examination. He appeared before the Board on May 9, 1985. For the purposes of oral interview the candidates have their choice for expressing themselves in any of the Indian languages specified in Schedule VIII to the Constitution or English language, as the case may be. The petitioner opted for Gujarati language for purposes of the interview. According to the petitioner he fared well in the written test as well as in the interview in the main examination and he was expecting higher rank in the merit list than what he got ultimately. He was declared finally successful and was ranked at 483 in the merit list. The mark-sheet of the petitioner for the Main Examination was forwarded to him and it was dated June 11, 1985. The petitioner felt aggrieved since the marks in some of the papers as disclosed by the aforesaid mark-sheet were not upto his expectation and he, therefore, approached the Chairman of the UPSC personally when he learnt during his meeting with him that the petitioner had obtained higher marks particularly in General Studies Paper I, History Paper I and History Paper II than what were shown in the mark-sheet. He, therefore, made a written representation by his letter of June 13, 1985 to the Chairman expressing his apprehension that while recording marks in the mark-sheets from the original papers some errors must have crept in since there was possibility that while transcribing the marks they might have been entered into the mark-sheets of other candidates inadvertently. Since there was no response to this representation, he addressed another letter on June 14, 1985 reiterating the same apprehension. The UPSC, however, by their letter of June 21, 1985 informed the petitioner that the Commission rechecked the marks of the petitioner in light of the apprehension expressed by him in his aforesaid letter of June 14, 1985 but they have not found any mistake as apprehended by him. The petitioner went for an oral representation before the Chairman and it was transpired in the meeting that his marks particularly in the aforesaid three subjects, namely, General Studies Paper I, History Paper I and History Paper II were slashed down from his original marks of 200, 219 and 232 respectively to 151, 163 and 189 as a result of the moderation made by the UPSC for purposes of ranking of candidates who had option to select any two of the optional subjects and also in selecting the medium of answering the question papers. The net result of the moderation was that his aggregate marks of 1179 (1049 in written test and 130 in viva voce test) were reduced to 1029 by slashing of 150 marks in the aforesaid there subjects with the result that his overall ranking went down appreciably. The petitioner, therefore, made a demand of justice from the UPSC by requesting the Commission telegraphically to rectify the mark-sheet and/or to furnish him with the rules of moderation, if there arc any, failing which he informed the Commission that he would be compelled to move the High Court. This telegraphic request was made on August 24, 1985.

4. The grievance of the petitioner in this petition was that the scheme of moderation was never disclosed to the candidates appearing at the Civil Services Examination and in any case the scheme was unreasonable and arbitrary resulting into substantial reduction of the aggregate marks thus affecting the careers of the candidates appearing at such examination According to the petitioner there were approximately 160 vacancies in the Indian Administrative Services, about 70 vacancies in Indian Police Services and about 20 vacancies in Indian Foreign Services. It was because of the arbitrary and unreasonable moderation system that the petitioner could not be racked in the first 190 vacancies as earmarked for the aforesaid three Services and, therefore, he was prejudicially affected and though he was declared successful and offered an appointment in Postal Services, he lost his chance for being appointed in the Indian Administrative Services, Indian, Police Services or Indian Foreign Services since the candidates who obtained total marks of 1080 and above were all offered appointments in the said three Services and if the petitioner's original aggregate marks of 1179 had been retained, he would have been surely selected and appointed in one of the aforesaid three services. The petitioner, therefore, moved this Court since there was no response from the UPSC to his demand of justice for appropriate wirts, orders and directions, as aforesaid.

5. Pursuant to the notice issued by the learned Single Judge, the respondents entered the appearance and reply affidavits of one Shri Samir Kumar Bose, who happened to be Joint Secretary in UPSC as well as Shri H.K.L. Capoor, Chairman of the UPSC have been filed resisting the petition. The original relevant records of the petitioner in the aforesaid three subjects where the marks were slashed down were also kept in the Court and shown to the learned Single Judge.

6. On behalf of the UPSC the petition was resisted on the ground of jurisdiction since the questions raised in the petition related to the process of examination, evaluation of answer books and awarding of marks at such examination, and the evaluation cannot be a matter of judicial scrutiny in absence of any mala fides or malpractices. The conduct of the final examination, the evaluation of the candidates' performance and allotment of marks and ranking are all matters which were carried out by the Commission in accordance with the established procedure and, therefore, no interference was called for. The Public Service Commission joined issues squarely on the point of moderation being arbitrary, and unreasonable and, therefore, violative of Articles 14 and 16 of the Constitution. The moderation was absolutely necessary having regard to the large number of examiners, a large number of optional subjects and option for medium for answering the question papers and, therefore, for purposes of achieving uniformity of assessment moderation was required to be resorted and was in fact resorted to by the UPSC. The process of moderation of marks is an integral part of the finalisation of the result of examination when a large number of examiners are involved to bring about uniformity of assessment inter se> the examiners. The Commission claimed that the system of moderation is an internal functioning of the UPSC conducting this examination and is secret and confidential and would nut be in the public interest to disclose the same to the examinees. It was pointed out in the reply affidavit as to how the new scheme of recruitment to Indian Administrative and other allied services by examination was commenced in 1979 pursuant to the recommendation of the Committee on recruitment, policy and selection methods of Indian Administrative and other allied services under the chairmanship of Shri B.S. Kothari.

7. As regards the challenge in the petition to the moderation scheme, the Joint Secretary Shri Bose, inter alia, stated as under:

12....

It is submitted that process of moderation of marks is an intergral part of finalisation of results of an examination when a large number of examiners are involved to bring about uniformity of assessment inter se the examiners. It was on the basis of marks finally awarded to the petitioner that he was correctly ranked. The statements made by the petitioner regarding the marks originally awarded to him in General Studies Paper I, History Paper I and History Paper II are not totally correct and the petitioner is put to the strict proof thereof.

8. The Commission contended in the said reply affidavit that since the information sought by the petitioner about the moderation etc. was of a secret and confidential nature, it could not be supplied to him and also because by the time the Commission received the telegraphic request vide the telegram of the petitioner dated 24th August, 1985, which reached the Commission's office of August 28, 1985, the petitioner had already moved the Court and, therefore, the Commission could not respond to the demand made by the petitioner. The petitioner's assessment that his position would go up if the moderation had not been effected was presumptuous because the other candidates would also change their ranks since the moderation had been effected not only in the case of the petitioner alone but all other candidates, since it was adopted to ensure equal and fair treatment to all competitors. In the reply affidavit of Shri Capoor the fact of the petitioner approaching the Chairman was admitted but the averment about the disclosure of the marks in the personal meeting has been denied. It has been stated by the Chairman in his reply affidavit that pursuant to the representation made by the petitioner in respect of some errors in transcribing the marks his answer books were scrutinised and it was found that there was no mistake on that count and the petitioner was accordingly informed. However, on June 27, 1985 he called upon the Chairman with an introductory letter from Shri Shankersinh Vaghela, Member of Rajyasabha about the apprehension of the petitioner of errors having crept in the tabulation of his marks either by mixing up of his marks with the other candidates or in the process of coding and de-coding. The Chairman, therefore, called for the scripts for his perusal and personally scrutinised the answer books and found that the marks of the petitioner as tabulated were in order. This position was explained to the petitioner and was also apprised the purpose of moderation which was necessary having regard to large number of examiners and the subjects involved in achieving uniformity of assessment.

9. On the aforesaid pleadings, the learned Single Judge could not persuade himself to admit the petition since in the opinion of the learned Single Judge (Coram: S.A. Shah, J.) in the system adopted by the Union Public Service Commission including the system of moderation, there is no infirmity and no exception can be taken to the system. According to the learned Single Judge, the system of examination including the system of moderation was not only just and fair but was one which vouchsafe against the element of arbitrariness creeping in the system and, therefore, it cannot be assailed as violative of Articles 14 and 16 of the Constitution of India. He, therefore, dismissed the petition by his order of October 4, 1985 which is the subject matter of this appeal before us.

10. This Court has vide its order of October 29, 1985 issued notice as to why the appeal should not be admitted, in response to which Mr. S.K. Bose, Joint Secretary to the Union Public Service Commission filed his affidavit on October 22, 1985 followed by the affidavit in rejoinder of the petitioner dated 18th December, 1985. When the Letters Patent Appeal came for admission before the Division Bench for hearing of the notice for admission, we suggested to the counsel appearing for the parties before us that we may dispose of the matter finally on merits after hearing both the sides to which the Counsel agreed. In the course of hearing since the main challenge on behalf of the appellant-petitioner was to the system of moderation on the ground of it being unreasonable and arbitrary inasmuch as the rule of average was applied as a result of moderation on some of the answer papers by the Head Examiner after the assessment by the examiners, we called upon the Learned Counsel for the Union Government, with the consent of the Learned Counsel for the appellant-petitioner, to file an additional affidavit explaining in details what was precisely the system of moderation and how it was applied and operated qua the appellant-petitioner, since we were not satisfied on reading the reply affidavit filed before the learned Single Judge or for that matter the reply affidavit before us about the precise nature of the system of moderation. In pursuance of that direction an additional affidavit of Shri S.K. Bose, Joint Secretary to the Union Public Service Commission dated January 27, 1986 has been filed.

11. Following two contentions have been urged on behalf of the appellant-petitioner:

1. The scheme of examination as notified did not envisage any moderation of marks and any deviation from such notified scheme would be arbitrary and, therefore, violative of Article 14 of the Constitution of India.

2. The alleged scheme of moderation is unreasonable and arbitrary and, therefore, violative of Articles 14 and 16 of the Constitution of India for two reasons; firstly because the Moderator might not be familiar with all regional languages which are permitted as a medium of answering question papers and, secondly because the basis of moderation is too tenuous inasmuch as the average marks of the moderated scripts are added or deducted having regard to the trend of the original assessment as was discerned in moderation of selected stripts was conservative or liberal.

12. What is the purpose of moderation has been indicated by the Supreme Court in Umesh Chandra v. Union of India that the device of moderation is adopted in some educational institutions if the examining body finds any difficulty in the examination conducted by it such as inclusion of questions in the question papers which are outside the syllabus, extremely stiff valuation of the answer books by an examiner or any other reason relevant to the question papers or the valuation of the answer books. It is no doubt true that in academic matters the jurisdiction of the Court under Article 226 of the Constitution is peripheral inasmuch as the Court does not sit in the matter as a Court of Appeal nor does it interfere unless the system of examination including that of moderation is unreasonable and arbitrary or where mala fides are alleged. It cannot be gainsaid that if in the selection of the method of examination including that of moderation two alternative courses are reasonably possible, the Court would not insist that a particular method be adopted since it would be in the ultimate analysis the agency conducting the examination which would be the best judge as to which method should be preferred and adopted having regard to the peculiar situation before us. By and large, it would not be proper for the Courts to venture into such 'inclusive thickets' like selection procedure, method of examination including that of moderation etc. when such matters are left to the expertise of the agency to which the assignment of selection is made since it is assumed that the members of such agency are men of experience and more knowledgeable in that behalf except where the method and/or the procedure so adopted becomes unreasonable or arbitrary or amounts to denial of equal opportunity See : Javid Rasul Bhatt v. State of Jammu & Kashmir . In Maharashtra State Board of Secondary and Higher Secondary Education and Ors. v. Paritosh Bhupeshkumar Sheth , the Supreme Court observed as under:

The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise find rich experience of actual day to day working of educational institutions and the department controlling them.

13. It is in the backdrop of this settled legal position that we have to decide about the two contentions urged on behalf of the appellant-petitioner.

14. We would decide the second contention first since that was the main challenge on which the selection has been sought to be impugned. Before we decide this question as to whether the scheme of moderation was arbitrary or for that matter unreasonable, we may shortly refer as to what are the averments in this behalf in the reply affidavit filed on behalf of the Union Public Service Commission. Before the learned Single Judge in the reply affidavit of Shri Bose, the Joint Secretary to the Commission, it has been inter alia stated in this connection as under:

4. With respect to the averments made in paragraphs 1 and 2 it is denied that the process of moderation adopted by the Union Public Service Commission is bad on the ground of arbitrariness, discrimination or on the ground that the same is violative of Articles 14 and 16 of the Constitution of India, it is submitted that since a large number of examiners are involved and since there are a large number of subjects in which candidates are required to be examined by different examiners, for the purpose of achieving uniformity of assessment, objective moderation is required to be resorted to and is resorted to by the Union Public Service Commission. It is submitted that the process of moderation of marks is an integral part of the finalisation of results of an examination when a large number of examiners are involved, to bring about uniformity of assessment inter se the examiners. No discrimination or injustice is done to the petitioner is this regard. Number of candidates might have undergone the process of moderation and it would not be correct to state that injustice has resulted to all or any one of them. The system of moderation forms part of internal functioning of the Union Public Service Commission which is treated as secret and it would not be in the public interest to disclose the same to the examiners. However, there is no arbitrariness involved in the process and an impartial constitutional body like the Union Public Service Commission is least interested in undertaking an exercise which is arbitrary, discriminatory or in any way unreasonable.

....

12....

It is submitted that process of moderation of marks is an integral part of finalisation of results of an examination when a large number of examiners are involved, to bring about uniformity of assessment inter se the examiners. It was on the basis of marks finally awarded to the petitioner that he was correctly ranked. The statements made by the petitioner regarding the marks originally awarded to him in General Studies Paper I, History Paper and History Paper II are not totally correct and the petitioner is put to the strict proof thereof.

15....

The assumption of the petitioner that his position will go up is baseless because other candidates will also change their racks because the moderation has not been effected in the case of the petitioner alone. The system of moderation is adopted to ensure equal and fair treatment to all competitors.

15. It should be noted that the precise system of moderation was not elaborately set out in the reply affidavit filed on behalf of the Commission before the learned Single Judge though the learned Single Judge has observed that the learned Standing Counsel for the Union Government has explained to him orally this particular system of moderation and he did not find any infirmity of it being arbitrary or unreasonable. In the reply affidavit filed in response to the notice issued on this Letters Patent Appeal, some attempt was made to explain the nature of the system of moderation. It has been, inter alia stated in the reply affidavit of 22nd Nov. 1985 of Shri Bose in paragraph 2 as under:

2. ...I state that the entire system of moderation or two-tier evaluation was explained to the Hon'ble Court in detail and the reports of the Head Examiners in the relevant subjects were shown to the Hon'ble Court. The effects of deduction/additions of marks by way of moderation as per the recommendation of the Head Examiners in each case were also explained to the Hon'ble Court and it was after taking into consideration all factors that the learned Single Judge was convinced that the deduction of marks as a result of moderation by the Head Examiner was not in any way prejudicial to the petitioner. The petitioner was also explained by the Honourable Court the consequences of absence of moderation and he was fully satisfied that the possibility of his going down in the merit list cannot be ruled out.

16. In paragraph 4 the Joint Secretary has further stated as under in this behalf:

4....

As a constitutional functionary, the Commission is aware of its responsibilities and have devised its own procedure regarding the conduct of examination and finalisation of marks/results to ensure that in a competitive examination no injustice is done to a candidate or a group of candidates due to the subjectivity involved in the examination of answer books. It is submitted that the process of moderation is an integral part of the finalisation of marks/results of an examination when a large number of examiners are involved to bring about uniformity of assessment inter se the examiners. It is in the context that the phrase "marks finally awarded to each candidate" occurring in Rule 15 reproduced above is to be read. The U.P.S.C. follows a well established procedure of moderation which has stood the test of time. The system of moderation can be shown to be in vogue since 1949 in the case of I.A.S. etc. examination and also for the Civil Services Examination which is a successor to the I.AS. etc. examination) held since 1979. The system of moderation forms part of the internal functioning of the Commission which is treated as 'secret' and it would not be in public interest to disclose the details of the same.

In this connection it is submitted that the 'Committee on Recruitment Policy and Selection Method' set up under the Chairmanship of Dr. D.S. Kothari, an emineat educationist, on whose recommendations the present scheme of Civil Services Examination was based, had observed,

"We have elsewhere pointed out that an examination, however carefully organised, suffers inevitably from what is termed 'examination variability'. The marks may be markedly different-specially when the answer books, because of their large number, are distributed amongst several examiners"

. It was to overcome this subjectivity in the valuation and to ensure that the candidates do not suffer or gain due to the strictness or liberality of the examiners in evaluation of scripts, that the system of 'Moderation' has been evolved by the Commission. The system has been studied and found by the learned Single ludge to be 'beneficial to the candidates and will remove some arbitrariness, if there is any, of different examiners....

17. It should be noted at this stage that a note under the caption. 'Steps for ensuring uniformity of Assessment' has been annexed to this reply affidavit though no reference in terms has been made in the said reply affidavit as to this note. Photostat copies of some paragraphs from Civil Services Examination Report of the Recruitment, Policy and Selection methods published by the Union Public Service Commission in 1976 which is popularly known as Dr. Kothari Report have been also annexed to this reply affidavit without specific reference to those paragraphs. Since again there was no clear cut indication as to what is the system of moderation that we called upon the Learned Counsel for the Union Government, with the consent of the Learned Counsel for the appellant-petitioner, to put in an additional affidavit explaining the precise nature of moderation and its operation qua the petitioner which has been done and affidavit of Shri Bose dated January 27, 1986 has been filed as stated hereinabove. After, explaining the scheme of the Civil Services (Main) Examination and the option available under the Rules to the candidates appearing at such examination for answering the compulsory papers of General Studies and non-option language subject in English or any one of the regional languages specified in VIIIth Schedule to the Constitution, the necessity of the scheme of moderation has been explained in paragraph 4(c) to 4(i) which read as under:

4. ....

(c) The number of candidates taking the Civil Services (Main) Examination is around 10,000 and as each candidate is required to take 8 papers, the number of scripts for valuation is around 80,000. There are subjects where a very few candidates, sometimes, even one, take the examination while there are subjects which are offered by more than 4,000/- candidates. While for the subjects where the number is around 300, the paper-setter himself values all the answer scripts; in the subjects which the number is more than this, it become necessary to appoint additional examiners in addition to the paper setter who acts as a Head Examiner for valuation of answer books within the schedule time. The subjectivity involved in valuation of conventional papers has been established by research and therefore it becomes necessary to take steps to ensure uniformity inter se the examiners where more than one examiner is involved in valuation of the particular paper/subject. Further, in a competitive situation where a common merit list is to be prepared and the candidates have the option of selection of subjects from a variety of heterogenous subjects and particularly so when the number of candidates widely varies it also becomes necessary to ensure reasonable degree of uniformity inter se the subjects as well. The problem of uniformity of standards becomes more complex when viewed in the background that the candidates have, in addition, the option of answering the papers in any one of the sixteen specified languages.

In some of the examinations conducted by the Commission, the number of candidates appearing is so large that the Commission have to appoint even upto one hundred examiners in a subject and therefore, it becomes incumbent on the part of the Commission to devise a system of moderation to ensure that the candidates do not suffer because of the subjectivity of the examiners concerned. The Commission have devised the moderation procedure detailed below with due regard to constraints of time and other relevant factors to ensure equitable treatment to all candidates and to judge them on merits by reducing the "examination variability" to the extent possible.

(d) The paper-setter of the subject normally acts as the Head Examiner for the subject and is selected from amongst senior academicians or scholars or senior civil servants (in case of General Studies papers only) by the Commission. In the case of subjects involving a large number of candidates, normally more than 350, the Commission appoint additional examiners to value the answer books. Each of them is allotted about 250-300 answer books for valuation. The Head Examiner values the answer books in English medium and such other language medium/ media in which he has proficiency. So far as the remaining answer books are concerned, to the extent feasible, for their valuation, the Commission appoint bilingual examiners, i.e. those who are proficient in English and one or more of the Indian languages.

(e) To achieve uniformity in valuation, where more than one examiner is involved, the Commission arrange for a meeting of the Head Examiner with his additional examiners soon after the examination is over. At this stage, they discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussion. The sample valuation of scripts is reviewed by the Head Examiner and variations in marking, if any are further discussed. After the discussion is over and the standard has been decided upon, the examiners disperse and complete the valuation of answer books according to a given schedule. The additional examiners are requested to adopt the same standard of marking in the case of answer books written in an Indian language as they adopt in the case of valuation of answer books in the English medium.

(f) Experience of the Commission over the years has shown that the above exercise is not enough to bring about uniformity of assessment inter se the examiners since in the process of valuation, the examiners tend to deviate from the standard expected to be followed. The Commission, therefore, apply further checks.

(g) After the valuation is completed by the additional examiner, the Head Examiner conducts a random sample survey of answer books to verify, if the norms of procedure evolved in the meetings of examiners have actually been followed by the additional examiners The process of random sampling consists of scrutiny of some top level answer books and some answer books selected at random from the batches of answer books valued by the additional examiners. The top level answer books of each additional examiner are revalued by the Head Examiner who carries out such corrections or alterations in the awards as he in his judgment, considers best, to achieve uniformity. The marks in language medium answer books are checked by the Head Examiner through interpreters wherever necessary. As an aid to his work and to help in forming his judgment about the standard of marking of each examiner, the Commission prepare certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest awards etc. in respect of the valuation of each examiner.

(h) It may be relevant to mentioned that the Head Examiner for each paper is not aware of the identity of any of the candidates whose scripts he values, as they bear fictitious roll numbers.

(i) Depending upon the standard adopted by the additional examiner, the Head Examiner may confirm the awards without any change if the examiner has followed the instructions correctly and the standard decided upon, or suggest upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In the case of the top level answer books revalued by the Head Examiner, his awards are 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 and as accepted by the Commission. If in the opinion of the Head Examiner there has been erratic marking by an additional examiner, for which it is not feasible to have statistical moderation, the scripts of the additional examiner are revalued by the Head Examiner or by another additional examiner whose norms of marking are similar to that of the Head Examiner.

18. It is also necessary to recapitulate as to how the answer books of the petitioner in the three subjects of General Studies Paper I, History Paper I and History Paper II were required to be moderated. In paragraph 5 of this additional affidavit the particulars about the petitioner's answer books have been set out as under:

5. That the appellant had, in the writ petition questioned the correctness of his marks in General Studies Paper I, History Paper I and History Paper II. The position regarding the award of final marks in these papers is as follows:

General Studies Paper I: The additional examiner who valued the script of the appellant had valued answer books written in the medium of Gujarati and English languages. The answer book of the appellant came in the top level and called for revaluation in accordance with the procedure outlined above. The Head Examiner revalued all the top level answer books in English medium as also in Gujarati medium and reused the awards wherever necessary in his view. The Gujarali medium answer books were revalued by the Head Examiner with the assistance of an expert proficient in both Gujarati and English languages who could correctly and faithfully interpret orally the contents and form of expression of Gujarati answers into English to the Head Examiner. As a result of his scrutiny, the original award of the appellant was revised. In this connection it is mentioned that not only in the case of the appellant but also in the case of other top level scripts shown to the Head Examiner, he has made corrections.

History Paper I: The additional Examiner who valued the answer scripts of the appellant had valued answer books written in Gujarati, Hindi and English medium. He was found by the Head Examiner to be extremely liberal in his valuation in all the media and marks were corrected by the Head Examiner in all the three media of answers. In his revaluation of Gujarati medium scripts, the Head Examiner who assisted by an expert who had proficiency in both English and Gujarati and who, in the opinion of the Commissioner, could give a faithfully oral rendering of the answers in Gujarati in the English language.

History Paper II: The concerned additional examiner in this paper had valued answer books written in Gujarati and English medium. Here again the answer book of the appellant came upto the top level and had to be revalued by the Head Examiner with the assistance of a language expert as in the case of paper I. The Head Examiner, in his scrutiny, found that the awards made by this additional examiner were very liberal and in order to bring about uniformity in the assessment inter se the examiners in this papers he had corrected the marks at the top range.

19. We are afraid that it can hardly be contended that where number of candidates appearing at the Civil Services (Main) Examination is increasing every year and was as large as about 10,000 in the main examination with which we are concerned in this petition, where again each candidate has to appear in eight subjects with as many as 46 optional subjects and having option to answer General Studies and non-language optional subject in any of the regional languages specified in the VIIIth Schedule to the Constitution, the moderation is not necessary. The Commission was perfectly justified in urging that in a competitive examination with 46 different optional subjects it is not only necessary to ensure reasonable degrees of uniformity inter se the examiners but also inter se subjects. It does not require much of imagination that in an examination where there are number of examiners in a subject there is bound to be what is known as "Examination Variability'. This situation, therefore, necessitates the moderation to ensure reasonable degree of uniformity inter se the examiners. Similarly, in order to curtail this Examination Variability arising as a result of number of optional subjects being allowed and they being permitted to be answered in as many as 14 regional languages, the Commission is under an obligation to have the moderation for purposes of achieving uniformity inter se subjects. If there is no moderation in such situations, a candidate may not be able to compete with the other candidates on account of fortuitous circumstance of his Paper-Setter or Examiner being conservative or liberal. The Commission, having regard to the statistical position of each subject finds that the valuation has been strict or liberal by the Head Examiner or Paper-setter and does statistical moderation by linear transformation, wherever necessary. The grievance made on behalf of the appellant-petitioner is that this moderation is not according to the suggestions made in the report of Kothari Commission inasmuch as the moderation work has been left to the sole judgment of the Head Examiner alone who is more frequent than none unfamiliar with the regional language in which the scripts have been answered. Our attention has been invited in this connection to the recommendations made in paragraph 1.38 of the Report of Kothari Commission at p. 22:

1.38. We have elsewhere pointed out that an examination, however, carefully organised suffers inevitably from what is termed 'examination variability'. For instance, if an examiner were to reassess an answer book, it is quite unlikely that the new marks would be the same as the marks assigned at the first marking. The variation in marking, as several studies in our country and elsewhere have shown, is inescapable. It can be of the order of several per cent. Answers of the same 'merit', all in one medium (say English), are not likely to get the same marks, how-so-conscientious or proficient an examiner may be. The marks may be markedly different - specially when the answer books, because of their large number, are distributed amongst several examiners. The question of intercomparison of answer books in different languages appears in a somewhat more realistic perspective, when seen in the context of the 'errors' which are an inevitable accompaniment of all examinations. What is important is to avoid systematic errors. By systematic errors we mean the tendency of an examiner to uniformly mark high or low answers in one language as compared to answers in another language. The effect of systematic errors can be reduced by providing a board of examiners, which should lay down on the basis of discussion, detailed guidelines and norms for evaluation of answers. It is desirable that, as far as possible, there are on the board at least two examiners to evaluate answers in any given language. It is possible to substantially improve the objectivity of the examination with such a board of examiners and by the adoption of statistical tests and checks.

20. How the Board of Examiners referred to in the above paragraph should be constituted and how it should be briefed for purposes of drawing of the papers in different subjects and how the scripts should be assessed is indicated in paragraphs 3.50 to 3.52 at page 65-66. Shortly stated the recommendation is that such a Board of Examiners should consist of three members who should be eminent professors and scholars preferably from research institutions. As regards the setting of papers and assessment of scripts, it has been emphasised that briefing should highlight the competitive nature of the examination and how a subject like Engineering or Mathematics should be equated with Botany or Zoology or Languages and how important it is that the standard of various papers should be more or less equal. The material part of paragraphs 3.50 and 3.52 in this behalf are recapitulated for ready reference:

3.50. We recommend that the question papers should be set by a board of examiners consisting of three members. We feel that the board should include eminent professors and where desirable and feasible, particularly in science subjects, scholars from well known research institutions 3.51.

3.52. ...What could be done is to give standard briefing to all members of the boards of examiners. The briefing should highlight the competitive nature of the examination and how a subject like Engineering or Mathematics has to be equated with Botany or Zoology or Languages and how important it is that the standard of various papers should be more or less equal. It will be equally important when the scripts of candidates are assessed that outstanding scripts in various subjects secure more or less equal marks. An outstanding answer in Literature or Economics for instance, should secure more or less the same marks as an outstanding answer in Physics or Mathematics. Further, the spread of marks in different subject-provided the numbers in each subject are not too small - should follow more or less the same distribution pattern.

21. It was, therefore, urged that the task of moderation having been left to the sole individual who may not be familiar with all Indian languages in which the scripts are answered makes the entire process of moderation arbitrary and unreasonable. We do see some force in this grievance. We have not been able to appreciate as to how such weighty observations in the report of Kothari Commission which was submitted in as back as March, 1976, have still not been considered by the Union Public Service Commission and implemented. It is no doubt true that it is more easily said than done in ensuring uniform standard of marking of answer books in different languages. It is really unforunate that such an august body like the Union Public Service Commission has not been able to up-date the system of examination which necessarily includes the method of moderation. To ensure uniformity of assessment of the scripts answered in different languages is not an intractable problem. The Kothari Commission has recorded in paragraph 1.36 of its report as under:

1.36. How to ensure a uniform standard of the marking of the answer books in different languages is not an easy problem. But is not intractable. (This is not unlike the problem of intercomparison of marks in different subjects). As a large proportion of answer books would be in English, at any rate for many years to come, these could serve as a kind of norm or comparison standard for answer books in other languages. If in any particular language the distribution of marks for answer books the mean and standard deviation ~ differ greatly from those for answer books in English, statistical adjustments could be made, if considered necessary by the board of examiners (described below). The evaluation of answer books would need, of course, much more time and attention then it commonly receives today.

22. The method adopted by the Head Examiner for moderating the scripts answered in languages unknown to the Head Examiner, namely, taking assistance of the examiner knowing that particular regional language who would translate the answers into the language known to the Head Examiner is not very satisfactory means of ensuring uniformity. The basic requirement for selection is to provide,

"to the maximum possible extent equality of opportunity to promising candidates in respect of the assessment of relevant intellectual and personal qualities"

(See; para 1.40 of the report of Kothari Commission). Unless, therefore, the method of examination, including that of moderation is under continuous review, evaluation and improvement, it would be difficult to fulfil the basic requirement of selection. We are appalled to hear from the Learned Counsel for the Union Government that the present method of moderation is in vogue and in practice since 1949 when in the initial stages of these services the method and manner of selection served the exigencies of the situation but to say that we are following the same method in spite of the number of candidates having swelled upto as many as 10,000 with as many as 46 optional subjects and with liberty to answer the scripts in as many as 14 languages is to say the least acting in disregard of the recommendation contained in sub-para (vii) of para 1.40 of the Kothari Commission's report. The said sub-para (vii) provides as under:

(vii) The method should be under continuous review and evaluation, continuing improvement in the light of experience and new developments is essential. This should take into account advancement of knowledge and developments in the universities. An important matter which deserves carful examination by the Commission is about 'scaling of marks' for different paper using appropriate statistical techniques. This is a widely recognised procedure for improving the reliability of examination as a tool of the selection process.

23. This is however not tantamount to saying that the present system of moderation is necessarily arbitrary and unreasonable and, therefore, the selection is vitiated. The Learned Counsel for the Union Government pointed out to us the recommendation made in the book titled "Research on Examination in India" by Aedwin Harper and V.S. Misra published in 1976 where in Chapter 15 of the recommendation as to how the marks should be scaled down for achieving a common standard of assessment has been indicated. The scaling is necessary because the marks of all examiners of a single subject have brought to a common standard and similarly all examination marks in different optional subjects should also be scaled to the same standard. Scaling is recognised as a most important change which should be introduced into the present examination system because it does not involve any change in the traditional type of setting of questions in an examination nor does it require re-training of examiners nor any fresh or special instructions are required to be issued to students. Scaling requires only an administrative decision. In U.S.A. in elementary schools same form of scaling is adopted by teachers and even school children in United States understand and accept the idea of scaling which is known as 'grading on the curve'. Scaling has been found necessary because the division of a student may depend more on the chance factor of his examiner being liberal or strict than on his actual merit. It is recognised that there are different methods of scales. The simplest method is what is known as converting raw to scaled marks. Shortly described this method requires first to decide what the highest scaled marks should be and what the lowest scaled marks should be and then the highest raw mark is set equal to the highest scaled mark and the lowest raw mark to the lowest scaled mark. The remaining marks are distributed proportionately in between. A slightly better method is that Head examiner or a Deputy Head Examiner re-examines a number of answer books from each examiner, chosen at random from the whole batch of the work of each examiner. Instead of random selection, the Head Examiner may select a few answer books marked as first division by each of the examiners and he then compares those with each other to see if the standard is consistent. He may repeat the exercise for different categories of students, namely students with distinction, with second division, third division, and fail. The Head Examiner will then be able to make fairly precise statement as to exactly how much a particular examiner's mark should be lowered or raised to make it conform to the general standard. The above method has got to be modified so as to suit the specific traditions and administrative techniques and problems of each separate examining authority. The third and more sophisticated method is what is known as "Randomization and equating" of marks. This is a mathematically based method of equalizing scales and standards and it would be more effective than any other method, In this method all answer books for a region are collected in a central office. The batches are then thoroughly mixed up and from these mixed up answer books, a certain number of answer books is drawn at random and sent to each examiner. The method assumes that the distribution of abilities in each batch is approximately equal and no one centre's answer books go to one examiner only. However, there are administrative complexities in this system (See: Chapter 15, Recommendations - Scaling at pages 246, 247 and 248). The important paragraph which was emphasised by the Learned Counsel in this connection reads as under:

Head Examiner re-examines: One way grows out of the discussion above, of the role of the Head Examiner. The results of his re-examining can be reduced to statistical constants, and applied mathematically to correcting the raw marks of each examiner. This would then lead to a three-stage rather than a two-stage marking process: (i) examiner's raw marks, (ii) examiner's scaled marks which he reports to the Head Examiner, and (iii) Head Examiner's final scaling of examiner's marks. (Possibly stage (ii) could be eliminated).

Ordinarily, the Head Examiner re-examines in order to issue instructions to the examiners. What we are suggesting here is that he may not issue instructions, but rather that he determines the 'personal equation' of each examiner and make the necessary corrections himself. The actual corrections' of course, can be done by formula, applied by a statistical clerk.

24. It has been also observed about how scaling of marks in different subjects to a common standard can be effected at page 258. It reads as under:

All that we have said concerning the scaling of marks of different examiners of the same subject, also applies to the scaling of the marks of different subjects to a common standard. The need for scaling examination marks has been pointed out repeatedly (Mathalanobis 1934, Harper 1963, Taylor 1963). The date in this study repeatedly pointed to this need.

Perhaps the most striking example of the need for scaling was the difference in the mathematics scale and other scales, as has already been pointed out. This resulted in nearly as wide average differences between other examiners. It resulted in a much wider standard error of measurement, despite higher inherent reliability, for mathematics than for other subjects.

....

An example should make this clear, from Table 4.5 we can see that the top 5 geometry candidates were awarded (in the Original marking) 50 marks out of 50. But the top history candidate was only awarded 36 marks, the second, third and fourth 31 marks, and the fifth only 30 marks. Let us make a table of some of the high ranks:

It is, therefore difficult to agree with the learned Advocate for the appellant-petitioner that merely because the task of moderation was left to the sole judgment of the Head Examiner, the entire process of moderation becomes unreasonable or arbitrary. It is no doubt true that the Commission now requires to scrupulously implement the recommendations made by the Kothari Commission for up-dating the method particulary of moderation and one of the topics which observes careful examination by the Commission is about scaling of marks for different papers by adopting appropriate statistical techniques. But this omission on the part of the Commission to implement the recommendations of the Kothari Commission would not render the present method of moderation so unreasonable as to warrant an interfererce by this Court. An examination, however, carefully organised, cannot be full-proof and is pron to suffer from 'examination variability'. In that view of the matter, therefore, the second contention cannot be upheld.

25. So far as the first contention is concerned, it is stated for merely rejecting it. The reason is obvious. Rule 15 of the Rules framed by the Union Public Service Commission for conduct of its examination enjoins that candidates appearing at the Civil Services Examination will be arranged after the interview by the Commission in the order of merit as disclosed by aggregating marks finally awarded to each candidate in the Main Examination (written examination as well as interview) and in that order so many candidates as are found by the Commission to be qualified at the examination shall be recommended for appointment on the results of such examination. The process of moderation is necessary to find out the merit of 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 evaluation of the performance, of the candidates at the written examination. The first contention is, therefore, rejected.

26. Even on merits, we do not find that the petitioner is entitled to make any grievance. The case of the petitioner was that his marks have been scaled down in three papers, namely General Studies Paper I, History Paper 1 and History Paper II as a result of moderation. It should be remembered that for purposes of ensuring the uniformity inter se the examiners, the Head Examiner selects for scrutiny some top level answer books of as many as first ten candidates in a subject and some answer books selected at random from the batches of answer books evaluated by the Additional Examiner. The top level answer books of each additional examiner are revalued by the Head Examiner who carries out such corrections or alterations in the awards as he in his judgment considers best to achieve uniformity. In the case of the top level answer books revalued by the Head Examiner, his awards are 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 and as accepted by the Commission. In the case of the petitioner, in the three subjects in which marks have been scaled down, it was as a result of actual re-assessment by the Head Examiner and not as a result of the standard fixed by the Head Examiner as a result of his re-examination of top level answer books. In that state of affairs, therefore, it is not possible for the appellant-petitioner to claim that he has suffered as a result of the application of the rule of average evolved by the Head Examiner as a result of his actual re-valuation of top level scripts. In that view of the matter, therefore, we do not think that there would be any justification for us to interfere with the ultimate conclusion reached by the learned Single Judge when he could not persuade himself to admit the petition.

For the reasons stated in this judgment, the appeal fails and is dismissed, with no order as to costs. No order on Civil Application No. 4079 of 1985.