1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :
ORDER: Bhanwar Lal Vs. State of Rajasthan & Another (S.B. Civil Writ Petition No.1211/2014) DATE OF
ORDER: March 3rd, 2014 PRESENT HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. A.K. Choudhary for the petitioner. Mr. J.P. Joshi, Sr. Advocate with Mr. Siddharth Joshi/Mr. H.S. Choudhary/Mr. Khet Singh for the respondent Rajasthan Public Service Commission. Reportable BY THE COURT : In this writ petition, the petitioner has prayed for quashing the technique of modernisation if applied by the RPSC while awarding the marks in the main examination of RAS2012and to direct the respondent Rajasthan Public Service Commission to revise the result of the RAS Main Examination 2012 accordingly and further prayed that the respondent Rajasthan Public Service Commission may be directed to disclose the raw marks of the petitioner and if the marks obtained by the petitioner is lower than 680 to 700, then, expert committee may be constituted to evaluate the answer-sheets of the petitioner for subjects Sanskrit-I & II, History-I and II and General 2 Hindi of the RAS Main Examination 2012. It is also prayed that the increase of posts by the Rajasthan Public Service Commission after declaration of result of RAS Main Examination 2012 may be quashed. As per facts of the case, the petitioner is possessing qualification of B.A. (Hons.) with Ist Division and also M.A. (Sanskrit) in Ist Division and, at present, he is serving as teacher in the Government Sanskrit School, Nandanvan, Chopasani Housing Board, Jodhpur. The petitioner applied for appearing in the competitive examination of State Service in pursuance of advertisement dated 06.02.2012 being in-service candidate. As per the scheme of appointment, preliminary examination was conducted, in which, the petitioner was declared successful he was allowed to appear in the RAS (Main) Combined Competitive Examination 2012 under Roll No.868148. The main examination was held in the month of June 2013 and result thereof was declared in the month of January 2014 but the petitioner was not declared qualified for the post and marks-sheet was made available on the website of the Rajasthan Public Service Commission which is placed on record as Annex.-5. The cut-off marks for the main examination for the OBC (Male) category was shown 3 as 593 and petitioner got 576 (scaled) marks, therefore, he was declared unqualified to appear in interview. In the writ petition it is pleaded that number of posts are increased after declaration of the result of the main examination whereas as per the rules and conditions of the advertisement itself the respondents cannot increase the number of posts after declaration of the result of the preliminary examination. The Rajasthan Public Service Commission declared candidates successful in the preliminary examination in the ratio of 1:15; but, after declaration of final result posts are increased which is evident from document Annex.-7, the information published by the respondent Commission dated 27.02.2014 on official website, therefore, action of the Rajasthan Public Service Commission is illegal. The petitioner stated in the writ petition that after perusing the marks-sheet it is revealed that 576 scaled marks have been awarded without disclosing raw marks. As per petitioner he was expecting 680 – 700 raw marks whereas in the marks-sheet only 576 (scaled) marks were shown and purposely raw marks are not disclosed while publishing result because the formula of scaling and adoption of moderation 4 technique for awarding marks are illegal and contrary to law. The petitioner contended in the writ petition that as per judgment of the Hon'ble Supreme Court in the case of Sanjay Singh Vs. U.P. Public Service Commission, reported in AIR2007SC950 the respondent Public Service Commission cannot adopt scaling formula or moderation technique while awarding marks in the competitive examination. As per contention of the petitioner, due to illegal scaling method adopted by the respondent Public Service Commission a gross injustice is caused to all the candidates including the petitioner which is evident from the fact that at the time of declaration of the result in the marks-sheet only the scaled marks are published while hiding the raw marks, therefore, it is a case of applying illegal method so as to deprive meritorious candidates from the opportunity of being appointed in the State service. According to the petitioner, only to victimise the meritorious candidates the Commission has acted contrary to the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh Vs. U.P. Public Service Commission, Allahabad, reported in AIR2007SC950 While assailing the result declared by the 5 respondents for the RAS Main Examination 2012 without disclosing the raw marks and applying wrong method of scaling the petitioner has preferred this writ petition for quashing the result and to direct the respondents for declaring the fresh result in accordance with the judgment of the Hon'ble Supreme Court in Sanjay Singh's case (supra). Learned counsel for the petitioner vehemently argued that the apex Court has held that the Rajasthan Public Service Commission shall not apply the scaling formula which causes injustice to the candidates who are otherwise meritorious. Therefore, if any method is applied contrary to the judgment of the Hon'ble Supreme Court in Sanjay Singh's case (supra), then, result declared by the RPSC may be declared illegal, so also, the scaling/modernisation formula and technique may be declared illegal, in view of the judgment of the Hon'ble Supreme Court in Sanjay Singh's case, a uniform and consistent method may be adopted so that actual ability of the candidates may come out and competent persons may get their right for appointment. Learned counsel for the petitioner vehemently argued that non-disclosure of raw marks creates serious doubt for the simple reason that while issuing 6 notice this Court specifically directed the respondent Rajasthan Public Service Commission to explain how without disclosure of the raw marks actually obtained by the candidates only on the basis of scaled marks the marks-sheet can be issued. In the reply to the aforesaid question sought by this Court, the respondents declared the raw marks of all the candidates and, in the reply, it is admitted for the query made by this Court that how the vacancies are increased after declaration of result of the RAS Main Examination 2012, it is submitted that a requisition was received by the RPSC from the Government on 11.10.2012 prior to declaration of the result of the preliminary examination, therefore, the Commission has acted in accordance with the rules and declared 25000 candidates successful in the preliminary examination so as to appear in the main examination. In the reply it is admitted that increased vacancies were not notified prior to declaration of the result of the Preliminary Examination but the Commission has acted in accordance with rules. Therefore, on this count, it is evident that total illegality has been committed by the respondent Commission while not disclosing the raw marks and not publishing the number of seats increased before the declaration of 7 the preliminary examination result. Learned counsel for the petitioner submits that the whole process of selection is in contravention of the judgment given by the Hon'ble Supreme Court in the case of Sanjay Singh which is followed by the Division Bench of this Court in the case of Srawan Kumar Vs. Rajasthan Public Service Commission, reported in 2011 (1) RLW, in which, this Court has held that scaling system adopted by the Rajasthan Public Service Commission in the RJS competitive examination 2008 is not permissible under the law because as per the judgment of Sanjay Singh's case the formula of scaling cannot be made applicable so as to assess the merit of the candidate appeared in the RJS competitive examination. It is also pointed out by learned counsel for the petitioner that in the case of R.N. Bhanwaria, S.B. Civil Writ Petition No.3705/2009, decided by the co-ordinate Bench of this Court on 20.09.2011, it is held that in the competitive examination for the posts of Sub Inspector of Police Combined Competitive Examination 2009 scaling formula cannot be made applicable because in that examination only compulsory subjects are there and respondent Commission accepted the said plea but, in this case, again, for compulsory 8 subjects the formula of scaling/moderation technique is made applicable which is totally contrary to the adjudication made by this Court in Ram Narayan Bhanwreya's case. In view of the above judgments it is vehemently argued by learned counsel for the petitioner that the meritorious candidates have been deprived from their right of consideration on merit because scaling formula and moderation technique which is not permissible under the law has been made applicable by the respondent Rajasthan Public Service Commission. Learned counsel for the petitioner while inviting attention towards the fact that in the reply the respondents accepted the fact that after issuance of notice by this Court, raw marks of all the candidates have been disclosed and, in the case of petitioner, 3 different marks-sheets are uploaded on the website of the Rajasthan Public Service Commission and, marks- sheets of all the candidates including Hemant Soni, Vikram Singh, Manoj, Sriram, Tarachand, Shakti Singh, Manish, Hitesh, Deepti, Yashwant, Ladu Ram and Kanhaiya Lal were also published. In the marks- sheets of the above candidates there is major difference between raw marks and scaled marks. For illustration, attention of this Court is invited towards 9 the fact that candidate Ladu Ram secured 47 raw marks but his scaled marks is 0. Similarly, for the candidate Kanhaiya Lal Choudhary secured 11 marks in paper II of Philosophy but after scaling '0' mark is given to him, therefore, both the above illustrations loudly speak that it is a case in which totally wrong scaling formula has been adopted, that too, in very casual manner. As per the petitioner, it is a case of bugling and wrong application of the method of moderation technique. Learned counsel for the petitioner submits that marks-sheets referred to above are few but, upon perusal of the whole marks-sheets, it will reveal that there are candidates whose marks have been scaled to 0 though they secured raw pass marks. Therefore, the whole process adopted by the respondents is illegal. It is also argued that the purpose of establishment of the Commission is to select most suitable candidates for appointment to the State services but, in this case, the respondent Commission has not only contravened the adjudication made by the Hon'ble Supreme Court in Sanjay Singh's case (supra) and the judgment of the Division Bench of this Court in Srawan Kumar's case; but, also tried to deprive the meritorious candidates from being selected in the State service. Therefore, this writ 10 petition may be allowed and the result declared by the respondent Rajasthan Public Service Commission while applying the formula of scaling and moderation technique may be declared illegal and, further, the respondent Commission may be directed to declare the result of the RAS Main Examination 2012 on the basis of raw marks obtained by the candidates. Learned counsel for the petitioner argued that in the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules 1999, the complete procedure is laid down in Rule 15 of the Rules of 1999 for selection but, in the said rule, it is nowhere provided that suitability or merit will be adjudged by applying scaling formula and modernisation technique, so also, in the advertisement dated 06.02.2012 no such assertion was made or information was given to the candidates that their suitability will be adjudged after applying the scaling formula and moderation technique, therefore, in absence of any information to the candidates the respondent Commission cannot apply the scaling formula for the purpose of assessing suitability of the candidates. In support of his contention, learned counsel for the petitioner invited attention of this Court towards judgment of the Hon'ble Supreme Court 11 in Ashok Kumar Sharma's case reported in (1997) 4 SCC18 in which, it is categorically held by the Supreme Court that selection is to be made as per the terms and conditions of the advertisement. In view of above facts, it is prayed that result of RAS (Main) Competitive Examination 2012 may be quashed. Per contra, learned counsel appearing on behalf of the Rajasthan Public Service Commission, Mr. J.P. Joshi filed reply and contended that the contention raised by the petitioner in this writ petition is no more res integra and the Division Bench of this Court in the case of Jai Singh & Others Vs. State of Rajasthan & Others, reported in 2011 (2) WLC46 wherein, the Division Bench of this Court after considering various judgments and earlier judgments of this Court held that in the RAS Examination technique of scaling/moderation is permissible, therefore, no illegality is committed by the respondent Public Service Commission in adopting the scaling and moderation technique. Learned counsel for the Commission submits that 4 queries were made by this Court from the Rajasthan Public Service Commission and for query No.A, it is submitted that applications were invited vide 12 advertisement dated 06.02.2012 in which it was specifically mentioned in note 3 of para 5 that if any vacancy will be increased prior to declaration of the result of the preliminary examination that will be considered in the present selection process and as per the facts on 11.10.2012 the vacancies were increased by the State Government which were taken into account at the time of declaring the result of the preliminary examination for the RAS Combined Competitive Examination 2012 because requisition was received prior to declaration of result. With regard to query No.B. It is submitted that soon after receiving notice raw marks obtained by the candidates have been published in the marks-sheets of all the candidates on the website. Earlier the raw marks were not published because opportunity is left to the candidates to file application under the right to information Act and to obtain information with regard to raw marks. With regard to query No.C, it is submitted that the fomula adopted by the Commission has already been considered and approved by the Division Bench of this Court in Jai Singh's case (supra), therefore, the respondent Commission is adopting the formula which has already been affirmed by this Court. 13 For query No.D, it is submitted by learned counsel for the respondent Commission that undisputedly decision has been taken by the Government that scaling will not apply onwards and approved a new scheme of selection while issuing notification for amendment dated 31.07.2012 but, before that vacancies were published on 06.02.2012, therefore, it cannot be said that any illegality has been committed by the respondent Commission in the process of selection under the RAS Combined Competitive Examination 2012. Learned counsel for the respondents further submits that 3 marks sheets issued to the petitioner are probably issued due to the mistake of the agency to whom the work of tabulation is given and further submits that there is no substance in the argument of the petitioner that due to illegal application of the scaling formula the candidates secured 0 scaled mark and 47 raw marks because formula has uniformally been applied for all the candidates, therefore, it cannot be said that the Rajasthan Public Service Commission has not adopted uniform formula for the purpose of selecting most suitable candidates while granting equal opportunity to all the candidates. In support of his arguments, learned counsel for 14 the respondent Commission submits that Division Bench of this Court considered the present controversy in the matter of Preliminary Examination conducted in the year 1993 for the selection under the Rajasthan State & Subordinate Services Direct Recruitment (Combined Competitive Examination) 1992 and held that scaling formula is not unfair and formula of moderation has correctly been applied by the Commission. Learned counsel for the respondents invited attention of this Court towards the judgments reported in 1994 (1) RLR533 Mahesh Kumar Khandelwal Vs. State of Rajasthan, 1997 (2) RLW1396and judgment of the Division Bench of this Court in Jai Singh's case reported in 2011 WLC (Raj.) 46 and submits that this Court has approved the applicability of the scaling formula and modernisation technique for adjudging the suitability of the candidates in the RAS and RTS examination. Learned counsel for the Commission further vehemently argued that in Sanjay Singh's case, referred by the petitioner, is related to Judicial Service in which there are only 2 optional subjects but number of optional subjects is more than 2 in the RAS/RTS examination, therefore, the case of Sanjay Singh is not applicable in the present case in view of the fact that Sanjay 15 Singh's case has already been considered by the Division Bench of this Court in Jai Singh's case and held that scaling formula can be made appicable for RAS & RTS Examination. Therefore, it is submitted that it is a case in which the Commission has acted in accordance with law and adjudication made by the Division Bench of this Court in which it has been held that the principle laid down in Sanjay Singh's case by the Hon'ble Supreme Court is not applicable for selection in the RAS/RTS competitive examination. It is also submitted that it is the last competitive examination in which scaling/moderation technique will be applied because the vacancies are advertised under the old rules, therefore, the scaling formula and modernisation technique are correctly made applicable for adjudging the suitability of the candidates that cannot be questioned by the petitioner in this case, therefore, this writ petition may be dismissed. With regard to contention of the petitioner that there is no mention in the advertisement or in the rules with regard to applicability of the scaling formula/modernisation technique as per the judgment of this Court the above formula has been uniformly made applicable so as to select the meritorious candidates for the posts in question, therefore, the 16 objection raised by the petitioner with regard to non- disclosure of the impugned method/technique in the advertisement is not sustainable. After hearing learned counsel for the parties, following questions arise in this writ petition from the pleadings and the judgments cited by learned counsel for the parties for consideration : A. Whether after advertisement dated 06.02.2012 increased vacancies for which admittedly no advertisement was issued by the respondents to inform the candidates prior to declaration of the result of the preliminary examination can be filled in under the advertisement dated 06.02.2012 ?. B. Whether the declaration of result of the main examination, showing only the scaled marks and after issuing notice by this Court publishing raw marks on the wesite in which the candidates are declared unqualified for the interview leads to doubt upon the procedure adopted by the Rajasthan Public Service Commission and, further, in view of the judgment of the Hon'ble Supreme Court in Sanjay Singh's case the scaling formula made applicable by the Commission is justified in view of the judgment of Jai Singh's case and if justified, then, to what extent. So also, the whole procedure adopted by the 17 Commission is doubtful in view of the fact that marks obtained by the candidates have been scaled either too high or too low. ?. Question-A : In this writ petition, a specific ground is taken by the petitioner that in the advertisement dated 06.02.2012 in all 289 vacancies in the State Service cadre were advertised and 817 vacancies in the cadre of Subordinate Servicee were advertised but, on the website of the Rajasthan Public Service Commission on 27.01.2014 the number of posts were increased in the State Service from 289 to 360 and in the subordinate- service from 817 to 851. These enhanced number of vacancies were not notified prior to declaration of the result of the preliminary examination, therefore, those vacancies cannot be filled in without granting opportunity to the petitioner. For this purpose, I have perused the relevant rules known as the Rajasthan State & Subordinate Service (Direct Recruitment by Combined Competitive Examination) Rules, 1999. Rule 15 of the said rules is as follows :
“15. Scheme of Examination, personality and Viva-voce Test.- The Competitive Examination shall be conducted by the Commission in two stages i.e. Preliminary Examination and Main Examination as per the scheme specified in Schedule-III. The marks obtained in the Preliminary 18 Examination by the Candidates, are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit. The number of candidates to be admitted to the Main Examination will be 15 times the total approximate number of vacancies (Category wise) to be filled in the year in the various services and posts but in the said range all those candidates who secure the same percentage of marks as may be fixed by the Commission for lower range will be admitted to the main Examination. Candidates who obtain such minimum qualifying marks in the Main Examination as may be fixed by the Commission in their discretion shall be summoned by them for an interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani Culture. However, for selection to the Rajasthan Police Service Candidates having 'C' Certificated of N.C.C. Will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate; Provided that the Commission, on intimation being received from the Government before declaration being result of the Preliminary Examination may increase or decrease the number of vacancies advertised.”
. Upon perusal of the proviso to Rule 15, it is specifically provided that the Commission, in intimation being received from the Government before declaration of the result of the preliminary examination, may increase or decrease the number of 19 vacancies advertised. The condition precedent is that the number of vacancies can be increased prior to declaration of the result of the preliminary examination. In this case, as per reply filed by the respondent Commission a requisition of increased posts was received by the Rajasthan Public Service Commission on 11.10.2012 vide Annex.-R/1 in which the detail of posts is given with regard to increasing the number of vacancies but in the communication dated 11.10.2012 (Annex.-R/1) it was specifically mentioned that, “कपय उक र ककय क सचन व ज वपत क पक श त व जप क पपत इस व भ ग क शभज न क शम क # ।". Learned counsel for the respondent Public Service Commission submitted that although no notification was issued to give information to the candidates that vacancies have been increased but, at the time of declaration of the result of preliminary examination, the candidates were declared successful in the ratio of 1:15 as per the increased number of vacancies, therefore, the contention of the petitioner is not sustainable that increased vacancies cannot be filled in. In the case of Ashok Kumar Sharma & Others Vs. Chandra Shekhar & Another, reported in (1997) 4 SCC18 the Hon'ble Supreme Court held that an 20 advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority cannot act contrary to it. Para 6 of the said judgment reads as under :
“6. The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr. T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well- established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied 21 notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been teated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J.
(and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.”
. In this regard, I have perused above judgment and amendment Annex.-R/2 dated 31.07.2012 which is notification issued by the Department of Personnel whereby in exercise of power conferred by proviso to Article 309 of the Constitution of India the Governor of Rajasthan amended the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules 1999 whereby Schedule-III appended to the Rules of 1999 22 was substituted and a new scheme for recruitment on the posts was made applicable. Admittedly, the amendment was made in the Rules of 1999 on 31.07.2012 whereby complete procedure is changed and requisition for increasing the number of vacancies was sent to the Commission on 11.10.2012 after the date of amendment, therefore, there was no occasion for the respondent Rajasthan Public Service Commission to include those additional/increased vacancies in the present selection process because before receiving the information with regard to increasing the number of vacancies on 11.10.2012 the Rules of 1999 were already amended vide notification dated 31.07.2012. Therefore, the respondent Public Service Commission can proceed for recruitment up to the extent of number of vacancies advertised vide notification dated 06.02.2012. Increased vacancies are required to be filled in as per amended rules, therefore, the inclusion of the additional vacancies in the present process of selection is totally arbitrary, illegal and unconstitutional. Question-B : I have perused the entire writ petition and reply filed by the respondents. The contention of the respondents is that for assessing suitability of the 23 candidates the method of scaling was adopted by the Rajasthan Public Service Commission since 1993 and the basis of applying scaling was that when large number of candidates appear for examination it is necessary to have uniformity and consistency in the valuation of the answer scripts, where the number of candidates taking the examination is limited and only one examiner evaluates the answer scripts but where large number of candidates are taking the examination and having option to take optional subjects out of number of subjects it is not possible to get the answer scripts evaluated by the same examiner, therefore, it becomes necessary to distribute the answer scripts amongst several examiners for evaluation with the paper-setter acting as head-examiner. When more than one examiners evaluate the answer scripts relative to a subject disparity will creep into the marks awarded by different examiners because each examiner will apply his own yardstick for evaluation and there is different in average marks and the range of marks awarded thereby affecting the merit of the individual candidates. This apart, there is hawk-dove effect because some of examiners are liberal and tend to award more marks while some of the examiners are strict in evaluating the answer scripts. Even among 24 those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the examiners o that the effect of examiner subjectivity or examiner variability is minimised. The procedure adopted to reduce the examiner subjectivity or variability is known as moderation. Therefore, it is felt necessary to adopt scaling system or moderation technique for evaluating the answers given by the candidates in the competitive examination and, for this purpose, in the year 1993 when scheme of preliminary and main examination was made applicable, at that time, the matter was considered by the Division Bench of this Court in the case of Mahesh Kumar Khandelwal & 16 Others Vs. State of Rajasthan & Others, reported in 1994 (1) RLR533 in which, it was held by the Division Bench that moderation of marks is accepted technique of valuation and the rule cannot be said to be violative of Articles 14 and 16 of the Constitution of India in any way. In the said judgment, the Division Bench was deciding the dispute raised at the time of the preliminary examination. In the year 1997, again, the matter was considered by the Division Bench of this Court in the 25 case of Rajasthan Public Service Commission Vs. Ramesh Chandra Pilwal, reported in 1997 (2) RLW (Raj.) 1348, in which, the Division Bench held that the Rajasthan Public Service Commission is justified in applying the technique of moderation in conducting the examination of RAS and allied services. Thereafter, before the Hon'ble Supreme Court the controversy was examined in the case of U.P. Public Service Commission Vs. Subhash Chandra Dixit, reported in (2003) 12 SCC701(=2003 AIR SCW5844, in which, the Hon'ble Supreme Court held that, “we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by U.P. PSC after an expert study and in such matter, the Court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the Rules.”
. Again, the controversy arose in the case of Sanjay Singh Vs. U.P. Public Service Commission, Allahabad, reported in AIR2007SC950 in which, Hon'ble Supreme Court after taking into consideration all the earlier judgments including the judgment in the 26 case of Subhash Chandra Dixit (supra) framed following questions : “(i) Whether the writ petitions are not maintainable ?. (ii) Whether 'scaling' of marks is contrary to or prohibited by the relevant rules ?. (iii) Whether the 'scaling system' adopted by the Commission is arbitrary and irrational, and whether the decision in S.C. Dixit (supra) approving the 'scaling system' requires reconsideration ?. (iv) If the statistical scaling system is found to be illegal or irrational or unsound, whether the selections already made, which are the subject-matter of these petitions, should be interfered with ?.”. The controversy in this case is related to above question No.(iii), in which, the Hon'ble Supreme Court framed question whether the 'scaling system' adopted by the Commission is arbitrary and irrational, and whether the decision in S.C. Dixit (supra) approving the 'scaling system' requires reconsideration. The Hon'ble Supreme Court in Sanjay Singh's case (supra) gave following verdict while deciding the aforesaid question after considering number of judgments and discussing the scaling system at length , which reads as under :
“36. We may now summarize the position regarding scaling thus :
27. (i) Only certain situations warrant adoption of scaling techniques. (ii) There are number of methods of statistical scaling, some simple and some complex. Each method or system has its merits and demerits and can be adopted only under certain conditions or making certain assumptions. (iii) Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner. (iv) In the Linear Standard Method, there is no guarantee that the range of scores at various levels will yield candidates of comparative ability. (v) Any scaling method should be under continuous review and evaluation and improvement, if it is to be a reliable tool in the selection process. (vi) Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but not a solution to solve examiner variability arising from the 'hawk- dove' effect (strict/liberal valuation). The material placed does not disclose that the Commission or its expert committee have kept these factors in view in determining the system of scaling. We have already demonstrated the anomalies/absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission 28 may follow the moderation system set out in Para 23 above with appropriate modifications.
37. We may now refer to the decision of this Court in S. C. Dixit. The validity of scaling was considered in paras 31 to 33 of the judgment extracted below :
"1. There is a vast percentage difference in awarding of marks between each set of examiners and this was sought to be minimized by applying the scaling formula. If scaling method had not been used, only those candidates whose answer-sheets were examined by liberal examiners alone would get selected and the candidates whose answer-sheets were examined by strict examiners would be completely excluded, though the standard of their answers may be to some extent similar. The scaling system was adopted with a view to eliminate the inconsistency in the marking standards of the examiners. The counsel for the respondents could not demonstrate that the adoption of scaling system has in any way caused injustice to any meritorious candidate. If any candidate had secured higher marks in the written examination, even by applying scaling formula, he would still be benefited.
32. The Division Bench of the High Court observed that the process of scaling was done examiner-wise only and the scaling formula did not take into consideration the average of mean of all the candidates in one particular paper but took the mean of only that group of candidates which has been examined by one single examiner. The counsel for U.P. PSC submitted that the observation made by the High Court is incorrect. The scaling formula was adopted to remove the 29 disparity in the evaluation of 14 examiners who participated in the evaluation of answer-sheets and the details have also been furnished as to how the scaling formula was adopted and applied. Therefore, we do not think that the observation of the Division Bench that the Commission did not take care of varying standards which may have been applied by different examiners but has sought to reduce the variation of the marks awarded by the same examiner to different candidates whose answer-sheets had been examined, is correct. The Division Bench was of the view that as a result of scaling, the marks of the candidates who had secured zero marks were enhanced to 18 and this was illegal and thus affected the selection process. The finding is to be understood to mean as to how the scaling system was applied. 18 marks were given notionally to a candidate who secured zero marks so as to indicate the variation in marks secured by the candidates and to fix the mean marks.
33. In that view of the matter, we do not think that the application of scaling formula to the examinations in question was either arbitrary or illegal. The selection of the candidates was done in a better way. Moreover, this formula was adopted by U.P. PSC after an expert study and in such matters, the court cannot sit in judgment and interfere with the same unless it is proved that it was an arbitrary and unreasonable exercise of power and the selection itself was done contrary to the Rules. Ultimately, the agency conducting the examination has to consider as to which method should be preferred and adopted having regard to the myriad situations that may arise 30 before them."
S. C. Dixit, therefore, upheld scaling on two conclusions, namely (i) that the scaling formula was adopted by the Commission after an expert study and in such matters, court will not interfere unless it is proved to be arbitrary and unreasonable; and (ii) the scaling system adopted by the Commission eliminated the inconsistency arising on account of examiner variability (differences due to evaluation by strict examiners and liberal examiners). As scaling was a recognized method to bring raw marks in different subjects to a common scale and as the Commission submitted that they introduced scaling after a scientific study by experts, this Court apparently did not want to interfere. This Court was also being conscious that any new method, when introduced, required corrections and adjustments from time to time and should not be rejected at the threshold as unworkable. But we have found after an examination of the manner in which scaling system has been introduced and the effect thereof on the present examination, that the system is not suitable. We have also concluded that there was no proper or adequate study before introduction of scaling and the scaling system which is primarily intended for preparing a common merit list in regard to candidates who take examinations in different optional subjects, has been inappropriately and mechanically applied to a situation where the need is to eliminate examiner variability on account of strict/liberal valuation. We have found that the scaling system adopted by the Commission leads to irrational results, and does not 31 offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which we are concerned. We are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid. (Emphasis added) 38. Learned counsel for the Commission contended that scaling has been accepted as a standard method of evaluation in the following decisions and therefore it should be approved :- (i) Kamlesh Haribhai Goradia vs. Union of India [1987 (1) Guj.LR157, upheld by this Court by order dated 11.3.1987 in SLP (C) No.14000/1986. (ii) Muhesh Kumar Khandelwal vs. State of Rajasthan [1994 (1) Raj.LR533 upheld by this Court by order dated 22.1.1996 in SLP (c) No.15682-15684 of 1994. (iii)K. Channegowda vs. Karnataka Public Service Commission [2005(12) SCC688. All the three cases related to moderation and not scaling. There are, however, passing references to scaling as one of the methods to achieve common standard of assessment. The fact that scaling is a standard method of assessment, when a common base has to be found for comparative assessment of candidates taking examinations in different optional subjects, is not in dispute. In fact the Commission may continue to adopt the said system of 32 scaling, where a comparative assessment is to be made of candidates having option to take different subjects. The question is whether scaling, in particular, linear standard scaling system as adopted by the Commission, is a suitable process to eliminate 'examiner variability' when different examiners assess the answer scripts relating to the same subject. None of the three decisions is of any assistance to approve the use of method of 'scaling' used by the Commission.
39. Learned counsel for the Commission also referred to several decisions in support of its contention that courts will be slow to interfere with matters affecting policy requiring technical expertise and leave them for decision of experts. (State of U.P. v. Renusagar Power Co. Ltd. - 1988 (4) SCC59 Tata Iron & Steel Co. Ltd. v. Union of India 1996 (9) SCC709 Federation of Railway Officers Association v. Union of India 2003 (4) SCC289. There can be no doubt about the said principle. But manifest arbitrariness and irrationality is an exception to the said principle. Therefore, the said decisions are of no avail.
40. We should, however, record the fair submission on behalf of the Commission that it is not irrevocably committed to any particular system and will adopt a different or better system if the present system is found to be defective.”
. In the above adjudication, the Hon'ble Supreme 33 Court categorically held that the scaling system adopted by the Commission leads to irrational results and does not offer a solution for examiner variability arising from strict/liberal examiners. Therefore, it can be said that neither of the two assumptions made in S.C. Dixit can validly continue to apply to the type of examination with which (we) are concerned. (We) are therefore of the view that the approval of the scaling system in S.C. Dixit is no longer valid. It is true that in that case, the Hon'ble Supreme Court was dealing with the matter of appointment to Judicial Service but the ratio of the judgment of the Hon'ble Supreme Court in Sanjay Singh's case (supra) is that the scaling formula adopted by the U.P. Public Service Commission was not found to be proper to achieve the ultimate goal of selecting the more suitable candidates for the posts. In the present case although the selection is with regard to administrative services in which several optional subjects are there but to demonstrate the failure of the existing scaling formula learned counsel for the petitioner raised the ground in this writ petition that purposely raw marks are not disclosed in the marks sheets of all the candidates who appeared in the main examination. But, after issuing notice by 34 this Court, the respondent Rajasthan Public Service Commission published the raw marks on the website but earlier only marks-sheets were issued showing scaled marks and not the raw marks obtained by the candidates. But, after issuing notice vide order dated 14.02.2014 the Commission disclosed the raw marks of the candidates on the website. In the rejoinder, the petitioner has annexed marks-sheets of the candidates namely, Hemant Soni, Vikram Singh Ashia, Manoj Kumar, Shriram Sharma, Tara Chand Dular, Shakti Singh Shekhawat, Munesh Kumar Meena, Hitesh Kumar, Sunil Sharma, Deepti Vashishtha, Yashwant Raj, Ladu Ram and Kanhaiya Lal Choudhary, to show that the main purpose of applying the scaling/moderation technique becomes a tool for the respondent Public Service Commission to deprive the meritorious candidates from their right of consideration. The argument of learned counsel for the petitioner is that Rajasthan Public Service Commission is a body established under Article 315 of the Constitution of India as independent body to select most suitable candidates for the public employment as per the fundamental rights granted by the Constitution of India. However, for the present the respondent 35 Rajasthan Public Service Commission has completely failed to perform its duty in fair manner, therefore, to create faith of meritorious youth this Court is required to interfere in the unreasonable and arbitrary work performed by the respondent Public Service Commission to deprive the meritorious candidates from getting the fruits of their hard labour for getting appointment in the public employment. To consider the above submission, learned counsel for the petitioner referred to the marks-sheets of all the above candidates filed along with the rejoinder which are as follows :
36. 37 38 39 40 For illustration, I have perused the marks-sheet of Ladu Ram (Roll No.832883) who secured 47 raw marks in paper II of Geography but, after scaling, '0' mark is awarded. Likewise, candidate Kanhaiya Lal Choudhary (Roll No.863464) secured 11 raw marks in paper-II of subject Philosophy and, after scaling, '0' mark is awarded to him. Candidate Vikram Singh Ashia (Roll No.801337) secured 79 raw marks in paper-II of International Relations but, after scaling, he got 100 marks. He secured 64 raw marks in Political Science & International Relations (paper-I) which, after scaling, became 81. There are number of 41 instances in the marks-sheets annexed with the writ petition either the candidates secured much higher raw marks which, after scaling, became much low marks and some candidates secured much less raw marks than the scaled marks awarded to them. These are only illustrations which speak loudly that scaling formula made applicable by the respondent Rajasthan Public Service Commission is not only unfunctional but it is a devise to curtail right of the meritorious candidates. In the competitive examination of the State Service or Subordinate Services, there must be transparency but, here, in this case, first of all,purposely raw marks were not published by the Commission but, after issuing notice by this Court, the Commission published raw marks on the website of the candidates who were not declared qualified for interview. Before this Court there is no material on record to know what are the raw marks obtained by the candidates declared qualified for interview and what are the scaled marks awarded to them by the respondent Rajasthan Public Service Commission. The counsel for the Commission however submits that it is secret affair of the Commission because it is not required to be published according to the rules. 42 In the opinion of this Court, there must be lucid transparency in the selection process but the illustrations aforesaid manifestly show that it is a case in which this Court ought to interfere for the ends of justice. It is true that the Division Bench of this Court in the case of Jai Singh & Others Vs. State of Rajasthan & Another, reported in 2011 (2) WLC46approved the scaling system but completely ignored the judgment of Division Bench of this Court in the case of Srawan Kumar Vs. R.P.S.C. & Others, reported in 2011 (1) RLW507(Raj.), in which, while following decision of Sanjay Singh's case held that the scaling system is not proper for assessing suitability of the candidates for recruitment to Judicial Service and the said judgment was upheld by the Supreme Court but, unfortunately, in Jai Singh's case (supra) the said judgment was not taken into consideration. I have perused the judgment in Srawan Kumar's case, in which, following adjudication was made by the Division Bench of this Court :
“20. Upon consideration of written submissions made by learned counsel for the RPSC, it emerges that before the Hon'ble apex Court the controversy with regard to selection of Rajasthan Judicial Service Examination 2008 is not pending because the Commission has 43 withdrawn the SLP No.(C)-6569/2010 filed against order dated 18.2.2010. Therefore, the written submissions made by the RPSC have no force for the following reasons : (A) In Sanjay Singh's case (supra), the Hon'ble Supreme Court disapproved the “scaling system”. for recruitment to Judicial Service. (B) The Division Bench of this Court in Sarita Naushad's case (supra) quashed the scaling system adopted by the RPSC for selection in the Rajasthan Judicial Service Examination 2005. (C) The Division Bench judgment in Sarita Naushad's case was challenged by the RPSC and, now, on 5.5.2010 the Hon'ble apex Court has passed order for Sarita Naushad and other five candidates that their cases shall be considered on the basis of raw marks obtained by them; meaning thereby, even in Sarita Naushad's case Hon'ble Supreme Court gave direction that for considering her candidature raw marks obtained by her shal be taken into account, therefore, again, the apex Court has disapproved the “scaling system”. adopted by the RPSC which is contrary to Rule 19 of the Rules of 1955. (D) The law laid down by the Hon'ble Supreme Court in Sanjay Singh's case (supra) is having binding force under Article 141 of the Constitution of India. Once adjudication has been made by the apex Court, then, as per law laid down in the case of Official Liquidator vs. Dayanand, reported in (2008) 10 SCC1 we have to maintain judicial discipline. In the instant case, inspite of the fact that Hon'ble apex Court declared the “scaling system”. void, the Commission has 44 again adopted the said procedure for selection in Rajasthan Judicial Service Examination 2008; and, at present, the question of selections of 2008 is not pending before the Hon'ble apex Court. Therefore, there is no substance in the written submissions advanced by the Commission. In this view of the matter, we are of the opinion that as per order dated 5.5.2010 passed by Hon'ble Supreme Court in Civil Appeal No.4235/2010, RPSC vs. Balbir Singh Jat & Others, with number of SLPs, the writ petitions bearing number D.B.Civil Writ Petition No.11317/2009, Deveendra Singh Udawat vs.State of Rajasthan & Others, D.B. Civil Writ Petition No.10385/2009, Hansraj & Another Vs. State of Rajasthan & Others, D.B. Civil Writ Petition No.11318/2009, Bhawani Singh Bhati vs. State of Rajasthan & Others, and D.B. Civil Writ Petition No.10811/2009, Ahsan Ahmed vs. State of Rajasthan & Others, in which, selections of 2005 are under challenge shall be governed by aforesaid order dated 5.5.2010, reproduced hereinabove.
21. With regard to other writ petitions, in which, selections of Rajasthan Judicial Service Examination 2008 are under challenge, while following the adjudication made bya the Hon'ble apex Court in Sanjay Singh's case as well as order dated 5.5.2010 and verdict given by the Division Bench of this Court in Sarita Naushad's case, all these writ petitions are allowed. Scaling system adopted by the Rajasthan Public Service Commission in the Rajasthan Judicial Service Examination 2008 is hereby declared illegal and unconstitutional. Consequently, the result declared on the basis of adopting the scaling 45 system during pendency of these writ petitions for Rajasthan Judicial Service Examination 2008 and recommendations made in pursuance of result so declared to the State Government for appointment are hereby declared null and void and the Rajasthan Public Service Commission is directed to prepare fresh merit/select list while taking into consideration the raw marks obtained by the candidates in the written examination and, while proceeding on the basis of raw marks obtained by the candidates in the written examination, further, add marks obtained in the interview. After preparation of fresh merit/select list, final result may be declared and names of so selected candidates may be recommended to the State Government for appointment. This exercise shall be completed by the Rajasthan Public Service Commission within a period of two months from the date of receipt of certified copy of this order.”
. I have also perused the judgment in the case of Jai Singh & Others Vs. State of Rajasthan & Another, reported in 2011 (2) WLC46 In that case, the Court was considering the final selection of the RAS examination in which it is held that for RAS examination the candidates are required to take optionals out of wide range of subjects, therefore, scaling technique is necessary; but, in that case also, the scaling system was approved for only optional subjects but, upon perusal of the marks-sheets annexed with this writ petition, it will reveal that 46 scaling formula has not only been made applicable for the optional subjects but also for compulsory subjects in the RAS Competitive Examination 2012 which is not permissible in law. It emerges from the facts that the whole purpose to apply scaling formula is to assess knowledge of optional subjects where large number of choice of optional subjects is available to the candidates and answer sheets are to be given to large number of examiners and it is not possible to arrive at correct merit of the candidates; and, therefore, in the judgment of Jai Singh's case (supra) also, this Court approved scaling upto the extent of optional subjects and not for compulsory subjects. But, here, in this case, upon perusal of marks-sheets it will reveal that scaling/moderation technique has been made applicable for compulsory subjects also. Therefore, it can be said that the result which is published by the Commission in question is not in consonance with law. The co-ordinate Bench of this Court in Ram Narayan Bhanwreya's case (S.B. Civil Writ Petition No.3705/2009, decided on 20.09.2011 along with 4 other writ petitions), while considering the controversy with regard to applying scaling formula for the compulsory subjects held that as per the verdict of 47 the Hon'ble Supreme Court in Sanjay Singh's case the mode of scaling is not required to be adopted for the compulsory subjects and learned counsel for the respondent Public Service Commission accepted the proposition advanced by learned counsel for the petitioner with fair admission that scaling/moderation technique is not right mode and that could not have been adopted. The relevant portion of the judgment in Ram Narayan Bhanwreya's case reads as under : “The factual matrix necessary to be noticed is that the Rajasthan Public Service Commissioner under the Notification dated 9.4.2007 invited applications from the eligible candidates to face Sub-Inspector Police Combined Competition Examination, 2007, for recruitment to the post of Sub-Inspector Police (Armed Police), Platoon Commander (Rajasthan Armed constabulary) and Sub-Inspector (Mewar Bhil Corpos). The petitioners appeared in the written examination, that was conducted on 26.8.2007. On qualifying the same, the petitioners were also permitted to undergo physical examination. On 23.12.2008, the Commission declared result of the examination and also the cut-off marks provided for different categories, those are as under : General :
332. General (F) :
263. OBC :
332. OBC (F) :
263. SC :
297. SC (F) :
212. ST :
299. ST (F) :
214. 48 The petitioners availed their marks-sheet through inter-net from the site of the respondent- Commission. It was noticed that in the compulsory subject of Hindi, the Commission adopted a mode of 'scaling'. Being aggrieved by the same, these petitions for writ are preferred. The argument of the petitioners is that in the compulsory subject like Hindi, the mode of scaling was not required to be adopted, as that is applicable only where any possibility exists for disparity in the grant of marks, due to the nature of the subject. Reliance is also place by counsel for the petitioners on several judgments of the Hon'ble Supreme Court and of this Court including the judgment of Hon'ble Supreme Court in Sanjay Singh Vs. U.P. Public Service Commission, Allahabad & Anr. JT2007(2) SC534 wherein it was held that the mode of moderation of marks is proper where the subject papers are common but variation exists on account of large number of examiners, but not the scaling. Learned counsel for the respondent-Commission, at the threshold, accepted the preposition advanced by learned counsel for the petitioners with a fair admission that in view of the judgments of Hon'ble Supreme Court including the Sanjay Singh's case (supra) scaling was not the right mode and that could not have been adopted.”
. In view of above judgment, the Rajasthan Public Service Commission also admits that the scaling formula cannot be made applicable for the compulsory subjects after the judgment of the Hon'ble Supreme Court in Sanjay Singh's case (supra). But, 49 again,at the time of evaluating answer scripts/sheets of the RAS Main Examination 2012, the respondent Commission made applicable the scaling formula for compulsory subjects also which is not permissible even according to the judgment of this Court in Jai Singh's case (supra) upon which learned counsel for the respondent Commission heavily relied. Now very vital part of the controversy is required to be considered whether the so called scaling formula which is followed by the Rajasthan Public Service Commission in the RAS Examination 2012 can be made applicable ?. Undisputedly in the Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 no scaling formula or moderation technique is provided. The so called formula was framed by the Union Public Service Commission and as per the respondent Rajasthan Public Service Commission it is adopted for the purpose of scaling in the year 1993. In the U.P. Public Service Commission also the same formula was adopted and Hon'ble Supreme Court in the case of S.C. Dixit (supra) approved the scaling formula prepared by the Union Public Service Commission which is followed by the Rajasthan Public Service Commission and U.P. Public Service Commission. 50 In the case of Srawan Kumar Vs. State of Rajasthan (supra) the Division Bench held that for Judicial Services as per verdict of the Hon'ble Supreme Court in Sanjay Singh's case (supra) no scaling formula can be made applicable but in the case of Jai Singh (supra) the Division Bench of this Court held that in the RAS Examination scaling formula can apply as per the Supreme Court judgment in Sanjay Singh's case; but, upon perusal of the judgment of the Hon'ble Supreme Court in Sanjay Singh's case, the Hon'ble Supreme Court after examining the whole scaling formula observed that the approval given by the Supreme Court for application of scaling formula in the case of S.C. Dixit requires re-consideration. Therefore, while framing question No.3 in Sanjay Singh's case “Whether the scaling system adopted by the Commission is arbitrary and irrational”., the Supreme Court held that scaling system adopted by the Commission leads to irrational results and does not offer a solution for examiner variability arising from strict/liberal valuation. In the present case, this Court cannot lose sight of the fact that only 10 marks-sheets are enclosed out of thousands of marks-sheets in the rejoinder by the petitioner and, upon perusal of marks-sheet of 51 candidate Sriram Sharma it appears that marks obtained by him in paper-I of History are enhanced from 98 to 120 and in paper-II from 67 to 92 and, in paper-I of Hindi Literature, he obtained 110 raw marks which is reduced to 85. In the case of candidate Shakti Singh Shekhawat, in paper-II of optional subject History, 59 raw marks obtained by him are enhanced to 80 and, in the case of candidate Munesh Kumar Meena the marks obtained by him in paper-II of Geography are reduced from 100 to 85. Likewise, in the case of candidate Sunil Sharma, the marks obtained by him in paper-I of Psychology 97 to 87 and, in paper-II of Psychology, reduced from 136 to 117. Glaring example emerges from the case of candidate Yashwant Raj who secured only 70 raw marks which is enhanced after scaling to 103. Candidate Ladu Ram secured 47 marks in paper-II of subject Geography which is reduced after scaling to 0 mark and, in paper-II of Philosophy, 25 raw marks secured by him have been increased to 38. In the case of candidate Kanhaiya Lal Choudhary, in paper-II of philosophy subject, 11 raw marks obtained by him is reduced to 0 but, in paper-II of subject History, 32 raw marks obtained by him are enhanced to 48. The above illustrations are only with regard to few marks- 52 sheets annexed with the writ petition; meaning thereby, the scaling system or moderation technique which is followed by the Rajasthan Public Service Commission has totally smashed the merit of the individual candidate, therefore, even if the ratio of Jai Singh's case is accepted that for optional subjects scaling is permitted, then also, the present scaling formula or moderation technique adopted by the Rajasthan Public Service Commission is more the less untenable and baseless because while applying such technique not only the Commission has created hurdle in the prospects of the candidates on the basis of individual merit but the function of the examiners is totally rendered redundant. In Sanjay Singh's case (supra), while deciding question No.3 the Hon'ble Supreme Court specifically held that when the object of the selection process is to select the best, and even one mark may make the difference between selection or non-selection, the system of scaling which has the effect of either reducing or increasing the marks in an arbitrary manner will lead to unjust results. This is in addition to the main disadvantage that scaling does not remedy the ill-effects of examiner variability arising out of strictness or liberality in valuation; meaning 53 thereby, this Court has no hesitation to hold that even if the Commission's contention is accepted that there are large number of subjects offered at the RAS Examination and, in that eventuality, scaling formula is permissible, then, too, it can be said that present formula of scaling or moderation technique applied by the Commission for assessing the suitability of the candidates is more the less snatching right of the meritorious candidates to be selected for the posts. It is worthwhile to observe here that earlier in the case of Srawan Kumar Vs. State of Rajasthan, in which, challenge was made with regard to application of scaling system in the RJS Examination 2008, in that case, it was categorically observed by the Division Bench of this Court (in which, I was one of the members) that the law laid down by the Hon'ble Supreme Court in Sanjay Singh's case is having binding force under Article 141 of the Constitution of India. Further, it was observed that once adjudication has been made by the apex Court, then, as per the law laid down by the Hon'ble Supreme Court in Official Liquidator's case (reported in (2008) 10 SCC1, this Court has to maintain judicial discipline and, observing the above proposition, the scaling system was declared illegal while following the 54 judgment of the Hon'ble Supreme Court in Sanjay Singh's case (supra). Hon'ble Supreme Court affirmed the said verdict of the Division Bench of this Court in Srawan Kumar's case, in which, scaling system was held to be void. Therefore, after affirmation of the judgment of the Division Bench of this Court in Srawan Kumar's case (in which, I was one of the members of the Division Bench) by the Hon'ble Supreme Court, it is not open for me to consider the view taken in Jai Singh's case (supra) heavily relied upon by learned counsel for the respondents because, with due respect, in view of the judgment of the Hon'ble Supreme Court in Official Liquidator's case, this Court is duty bound to follow the verdict given in Sanjay Singh's case in which it was held that scaling system is void. In view of above facts, this Court has no hesitation to observe that as a result of adoption of such a system/method all the jurisdiction with regard to assessment of the merit lies in the hands of scaling system only which is not even provided in the Rules of 1999, therefore, the final result declared by the respondent Rajasthan Public Service Commission based upon scaling system for the RAS Examination 2012 is not sustainable in law. 55 As a result of the above discussion, this Court is of the opinion that the purpose of establishment of the Public Service Commission in the State is to select meritorious and most suitable and brilliant candidates having administrative capabilities and, for that, task of selection is given to the Public Service Commission in which academicians and other competent persons assigned the duty to select more suitable candidates. But, here, in this case, it appears from the whole discussion and documents produced before this Court that not only the Hon'ble Supreme Court in Sanjay Singh's case (supra) took serious view against the scaling and moderation technique but consequences of the scaling system clearly emerge in this case that the whole merit of the candidate is destroyed by applying present scaling system. In view of the above, this writ petition is allowed with the following order/directions : (a) It is held that the scaling system and moderation technique presently applied by the Commission has destroyed the merit of the individual candidates, therefore, the 56 result declared by the Rajasthan Public Service Commission based upon scaling and moderation technique of the RAS Main Examination 2012 is hereby quashed and the Rajasthan Public Service Commission is directed to prepare result of the RAS (Main) Examination 2012 on the basis of raw marks obtained by the candidates afresh and declare fresh result within one month from the date of receiving certified copy of this order and, thereafter, proceed for selection. (b) Further, the increased vacancies communicated to the Commission vide communication dated 11.10.2012 shall not be included in the present selection for the simple reason that before communication amendment was made in the Rules of 1999 vide notification dated 31.07.2012, therefore, those vacancies should be filled in only in accordance with the amendment made prior to sending the requisition for vacancies to the Rajasthan Public Service Commission. There shall however be no order as to costs. 57 (Gopal Krishan Vyas) J.
Ojha, a.