O R D E R (Common) Hon'ble Mr. K.N. Shrivastava, Member (A):
As common questions of law and fact are raised and the reliefs prayed for are also common, with the consent of both the parties, we proceed to dispose of these two OAs through this common order.
25
However, for the sake of convenience, facts in OA No.3526/2017 are discussed.
2. MA No.3750/2017 in OA No.2526/2017 and MA No.816/2018 in OA No.749/2018 filed under Rule 4 (5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987 for joining together in single application, are allowed
3. Through the medium of this Original Application (OA) (3526/2017) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for the following relief:
"a) Direct the respondents to adopt neutralization/equalization/moderation process (or any other nomenclature of the process whatsoever be it), towards all the Tiers/stages of CGLE-2017
b) Draw and declare the results accordingly and
c) Further consider the applicants in accordance with their merit position so obtained for purposes of their further participation and appointment pursuant to CGLE-2017".
4. The factual matrix of the case, as noticed from the records, is as under:
4.1 The Staff Selection Commission (SSC) - respondent no.2 notified conduct of Combined Graduate Level Examination (CGLE), 2017 vide Annexure A-1 advertisement/notice dated 16.05.2017. This examination was for filing up of a large number of posts across several Central Government Departments. The notice stated that
26
closing dated of receiving applications was 16.06.2017. It further stipulated that examination would comprise of four Tiers. Tier-I was Computer Based Examination with multiple choice questions in the fields of General Intelligence Reasoning, General Awareness, Quantitative Aptitude and English Comprehension, Tier-2 was also Compute Based Test with multiple choice questions in the fields of Quantitative Abilities, English Language & Comprehension, Statistics and General Studies (Finance and Economics). This was of 1000 marks. There was a provision of negative marking also in Tier-I and Tier-II Examinations. After qualifying Tier-I, a candidate was eligible to take Tier-II Examination.
4.2 Tier-III Examination was of descriptive type in pen and paper mode. The candidates were required to write Essays/Precie/Letter/ Applications etc. in English or Hindi. This was of 100 marks. It was relevant for certain types of posts covered under CGLE.
4.3 The merit list was to be prepared by adding the marks of Tiers I, II and III. Computer Proficiency Test/Skill Test (Tier-IV Examination) was not common to all the candidates.
4.4 For the purpose of such examinations, SSC has nine centres in the country each headed by a Regional Director. The CGLE, 2017 was held at these nine centres. In all, 15,43,962 candidates
27
participated in Tier-I. The Annexure A-I advertisement/notice also indicated the dates of holding various Tiers of the CGLE, 2017, details of which are as under:
Tier-I 1stAugust to 20thAugust, 2017.
Tier-II 10th& 11thNovember, 2017
Tier-III (Descriptive) 21stJanuary, 2018.
Tier-IV (Skill Test) February, 2018.
4.5 As stipulated in the Annexure A-1 notice, Tier-I was held at nine centres from 01.08.2017 to 20.08.2017 in which these applicants also participated. Before the results of Tier-I examination could be announced, these applicants have approached this Tribunal by filing the instant OA on 03.10.2017, questioning the selection criteria. Their main contention is that CGLE, 2017 was to be held at different Centres, in different Tiers with different question papers and in different shifts due to the large number of applications received. Their contention is that the difficulty levels of the questions in all the papers of the same Tier Examination would be different. Hence, it was incumbent on the part of respondent no.2 to have prescribed equalization formula, which it did not do. It is thus apprehended by the applicants that
28
the ultimate selection would not be done in a fair manner. Accordingly, they have approached the Tribunal in the instant OA, praying for the reliefs, as indicated in para-3 supra.
5. The applicants have pleaded the following important grounds in support of the reliefs claimed:
5.1 Wherever the examination is conducted in multiple shifts, with different question papers, it is impossible for any examining body worldwide to maintain same type of difficulty level of the questions be it a recruiting agency or University. Further, where there is descriptive examination in shifts, not only the question papers are different but also the answer sheets are distributed amongst various examiners for evaluation and examiners do not have a uniform approach in evaluation. The examiners do not have the same standards of examining the answer sheets.
5.2 To remove such anomalies arising from fortuitous circumstances of different question papers having different difficulty levels in Multiple Choice Question papers and evaluation of answer sheets by different examiners, the examining bodies evolve a system of equalization to bring parity in the results. These methods are well established and accepted. As a matter of fact, SSC itself had
29
applied such methods in Combined Higher Secondary Level (10+2) Examination of the year 2010.
5.3 Equalisation is a statistical process across different forms of an examination and its purpose is to adjust for differences in test from difficulty so that the forms can be used interchangeably.
5.4 In the equalization methodology the examiners are accorded two types of test scores viz. (i) 'raw scores' and (ii) 'scaled scores'. The marks awarded to the candidates on bare evaluation of the answer script are called 'raw scores' whereas after the adjustment or transformation upon equalization, the 'scaled score' of the candidate is arrived at. Some examining bodies further convert the 'scaled scores' to a single linear scale to report scores of all candidates on a consistent scale. It is called percentile ranking.
5.5 The applicants had participated in Tier-I Examination but subjected to a much higher difficulty level question papers than others and hence are prejudiced by the inaction on the part of the respondents in not adopting the neutralization/equalization methodology. Even the UPSC in multiple shifts conducts the neutralization process.
5.6 The equalization process is also endorsed by the following judgments of the superior courts:
30
i) Judgment of the Hon'ble High Court of Gujarat in Kamlesh Haribhai Goradia v. Union of India, [(1987) 1 GLR 157];
ii) Judgment of the Hon'ble Supreme Court in Uttar Pradesh Public Service Commission v. Subhash Chandra Dixit & Ors., [Civil Appeal No.8609 of 2003);
iii) Judgment of the Hon'ble Supreme Court in Mahesh Kumar Khandelwal v. State of Rajasthan, [(1994) (1) Raj. 533].
5.7 Various examining bodies have already adopted the normalization/equalization technique, some of them are:
i) Professional Examination Board, Bhopal.
ii) Common Aptitude Test (CAT) 2016.
iii) Railway Recruitment Board.
iv) Graduate Aptitude Test in Engineering (GATE)
v) Banking Recruitment Processes conducted by the IBPS.
6. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which they have broadly made the following averments:
6.1 The CGLE, 2017 was notified on 16.05.2017 and Tier-I examination and the result of the Tier-I was declared on 11.01.2018. None of the candidates who have been declared successful in Tier-I examination have been impleaded as party-
31
respondents in the present OA and hence this OA is liable to be dismissed on the ground of non-joinder of necessary parties.
6.2 It is settled law that where third party rights are involved, no adverse orders can be passed unless they are impleaded as party to the proceedings. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court in Bhagwanti v. Subordinate Services Selection Board, [1995 Supp (2) SCC 663], wherein the Hon'ble Supreme Court has held as under:
"3. It is obvious from the impugned order of the High court that in the writ petition before it only the Subordinate Services Selection Board was impleaded as a party. Neither the selected candidates nor those who were issued appointment letters were impleaded as parties before the High court. The High Court set aside the selection and the appointments without hearing the persons concerned. It is settled proposition of law that no order to the detriment of a person can be passed without hearing him. We, therefore, allow the appeal and set aside the impugned order of the High court on this short ground. The writ petition filed by the respondents before the High court is thus dismissed."
6.3 It is settled law that rules of examination cannot be altered midway after the commencement of the selection process, as held by the Hon'ble Apex Court in the case of A.P. Public Service Commission v. B. Swapna, [(2005 4 SCC 154], Bedanga Talukdar
v. Saifudaullah Khan, [(2011) 12 SCC 85] and Prakash Chand Meena v. State of Rajasthan, [(2015) 8 SCC 484].
32
6.4 The applicants were aware that moderation, neutralization or equalization process is not going to be adopted in CGLE, 2017. They participated in the selection process without any demur or protest. Hence, they cannot be allowed to question the selection process itself in terms of the dictum of Hon'ble Supreme Court in K.H. Siraj v. High Court of Kerala, [(2006) 6 SCC 395].
6.5 The Courts, in exercise of their power under judicial review, are not normally expected to interfere in the ongoing selection process as held by the Hon'ble Supreme Court in Dalpat Abasaheb Solunke v. B.S. Mahajan, [(1990) 1 SCC 305, Dental Council of Inida v. Subharti K.K.B. Charitable Trust, [(2001) 5 SCC 486] and Basavaiah v. Dr. H.L. Ramesh & Ors., [(2010) 8 SCC 372.
6.6 The OA has been filed on the basis of certain presumptions and not on facts. The question papers as given to the candidates are set by the experts and the standard of the papers remain the same across all sets of question papers. As notified in the notice, the merit list is to be prepared by adding the marks of Tiers I, II and III Examinations but the candidates have to qualify in all these three Tiers separately.
6.7 Respondent no.2 denies the contents of para-4.14 of the OA.
33
As a matter of fact, the equalization criteria was not adopted by respondent no.2 in the conduct of the Combined Higher Secondary Level (10+2) Examination 2010.
7. On completion of the pleadings, the case was taken up for hearing the arguments of learned counsel for the parties on 11.07.2018. Arguments of Shri Ajesh Luthra, learned counsel for the applicants and that of Shri Gyanendra Singh and Shri Hanu Bhaskar, learned counsel for the respondents were heard.
8. Shri Luthra, learned counsel for the applicants, besides reiterating the averments made in the OA, submitted that adoption of equalization methodology is a common practice in respect of the examinations conducted in different shifts with different question papers. He gave examples of various examining bodies, including RRB, who have done so. He further submitted that even respondent no.2 in its notice dated 5.5.2015 in regard to CGLE, 2018 has notified that equalization methodology is going to be adopted. A copy of this notice is placed on record with MA No.2289/2018 in this OA. He fairly submitted that the OA has been filed before the Tier-I result was published and that the Hon'ble High Court of Delhi and the Hon'ble Supreme Court have declined to interfere in the matter. He also admitted that in the
34
meanwhile, Tier-II and Tier-III Examinations have been held. He stated that some of the applicants have qualified for Tier-III Examination and if equalization methodology is adopted they would get benefitted.
8.1 Shri Luthra particularly drew our attention to Annexure 'C' of MA NO.677/2018 to indicate that even at KKR Region, which is one of the nine Regional Centres of SSC for CGLE, 2017 there is a wide variation in the minimum and maximum marks secured by the candidates in different shifts.
8.2 Concluding his arguments Shri Luthra emphasized that equalization methodology is going to bring fairness and equity in the context of the CGLE, 2017 and that introduction of equalization methodology has also been endorsed by various judgments of superior courts. Some of them are:
i) Decision of the Hon'ble Patna High Court in Prem Kumar Bhakta v. State Of Bihar, [MANU/BH/0054/2014];
ii) Decision of the Hon'ble Supreme Court in U.P. Public Service Commission v. Subhash Chandra Dixist & Ors., [Appeal (Civil) No.8609 of 2003, decided on 05.11.2003];
iii) Decision of the Hon'ble High Court of Rajasthan in Rajasthan Public Service Commission v. Ramesh Chandra Pilwal [MANU/RH/0338/1997]
iv) Decision of the Hon'ble Supreme Court dated 25.08.1998 in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra & Ors.
35
v) Decision of the Hon'ble High Court of Madhya Pradesh (Indore Bench) in Rutvj Waze and Ors. v. Union of India & Ors., [MANU/MP/0639/2015].
vi) Decision of the Hon'ble Supreme Court in Sanjay Singh & Anr. V. U.P. Public Service Commission, Allahabad & Anr., [MANU/SC/0563/2007].
9. Per contra, Shri Hanu Bhaskar, learned counsel for the respondents submitted that nothing has been stated in the pleadings of the applicants as to which papers were easy and which were difficult. He emphatically argued that moderation methodology cannot be adopted at this stage nor any such benefit can be extended to the applicants who have qualified Tier-III examination as the same would be discriminatory. He also expressed practical difficulty of making any mid-course change in the selection methodology.
10. We have considered the arguments of the learned counsel for the parties and have perused the pleadings. We do agree with the contention of Shri Luthra, learned counsel for the applicants that in any examination involving various centres, shifts, question papers and examiners, it cannot be ensured that the difficult level of the questions are the same in all the papers and the evaluation approach of all the examiners is also going to be the same. Hence,
36
it would be prudent to introduce the well established methodology of moderation/neutralization/equalization which has been widely adopted by various examining bodies. Even the Hon'ble Supreme Court and various Hon'ble High Courts have endorsed this methodology in their judgments, as referred to hereinabove by Shri Luthra. Even the respondent no.2 itself for the conduct of the CGLE, 2018 has introduced the equalisation methodology for valid reasons, as brought out by the applicants in their pleadings.
11. Now the question is as to whether such a methodology can be adopted during the mid of the conduct of the CGLE, 2017? Our answer is emphatic "No". Some of the likely confusions and complications that would arise by any mid-course correction have already been highlighted by the respondents in their reply. It is well settled law that the rules of the game cannot be changed midway once the game has begun. We are pleased to note that the respondent n o.2 itself has taken cognizance of the issues arising out of the conduct of CGLE, 2017 in various shifts with different question papers and accordingly it has decided to introduce the equalization methodology for CGLE, 2018. We are quite sanguine that respondent no.2 would have equalization methodology incorporated in its future CGLEs as well.
37
12. In the conspectus, we do not intend to grant the reliefs claimed in these OAs by the applicants and accordingly dismiss both of them. At the same time, we record our appreciation for the action of the respondent no.2 in introducing the equalization methodology for CGLE, 2018 with a view to achieve and demonstrate fairness in the selection process.
13. There shall be no order as to costs.
16. In view of the above, no separate orders are required to be passed in MA Nos.677-678/2018, which accordingly stand disposed of.
(S.N. Terdal) (K.N. Shrivastava)
Member (J) Member (A)
'San.'