Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 2051 of 2015, Judgment Date: Feb 19, 2015

ITEM NO.1A               COURT NO.12               SECTION XVI


               S U P R E M E  C O U R T  O F  I N D I A

                       RECORD OF PROCEEDINGS

                 CIVIL APPEAL NO. 2051 OF 2015

(Arising out of Petition(s) for Special Leave to Appeal (C)  No(s).
27582/2014)


SUJASHA MUKHERJI                                 Petitioner(s)

                                VERSUS


THE HON'BLE HIGH COURT OF CALCUTTA,

THR. REGISTRAR & ORS.                            Respondent(s)

Date :19/02/2015 This Appeal was called on for Judgment Today.

For Petitioner(s)

                     Mr. Partha Sil,Adv.

For Respondent(s)

                     Mr. G. S. Chatterjee,Adv.


      Hon'ble Mr. Justice Vikramajit Sen pronounced the Reportable  Judgment
of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.

      Leave granted.

   The Appeal is allowed and the Impugned Judgment is set aside.


|  (NEELAM GULATI)      COURT      |   ( SAROJ SAINI)                  |
|MASTER                            |COURT MASTER                       |

  ( Signed Reportable Judgment is placed on the file)




                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO.   2051      OF 2015
                 [Arising out of S.L.P.(C) No.27582 of 2014]



SUJASHA MUKHERJI                                             ....APPELLANT

                                   Versus

THE HON'BLE HIGH COURT OF
CALCUTTA THROUGH  REGISTRAR & ORS
                                                          .....RESPONDENTS


                               J U D G M E N T


VIKRAMAJIT SEN, J.


Leave granted.


2     Succinctly stated the significant and singular facts of the  case  are
that the Writ Petitioner/Appellant was placed in the second position of  the
Written Test for recruitment to the  cadre  of  the  District  Judge  (Entry
Level) through Direct Recruitment from the Bar-2012.    Had  her  marks  not
been moderated from 55 per cent to 37 per cent in Paper No.II her  aggregate
marks would have been 307 which is higher than the candidate at Serial  No.1
by 6.5 marks; in other words,  she  was  the  topper  in  the  Written  Test
comprising 5 papers.  After moderation was carried out,  [which  it  appears
was conducted only in respect of Paper No. II], she stood disqualified  from
further consideration, i.e. appearing for  the  final  stage  of  selection,
viz., the Interview/viva voce for the  reason  that  obtainment  of  minimum
marks of 40 per cent in each paper was the pre-requisite  for  being  called
for the Interview.  These facts have struck us as extremely significant  for
the reason that a candidate who stood First in the Written  Examination  (in
five papers) has not been found suitable  for  even  being  called  for  the
final step in recruitment, i.e. the Interview.  It has been asserted by  the
Writ Petitioner/Appellant that she is  a  position-holder  in  the  Calcutta
University;  she  quite  obviously  also  possesses   extraordinarily   high
academic and scholastic merit.  It has been vehemently contended before  us,
as also before the learned Single Judge and the learned  Division  Bench  of
the Calcutta High Court, that the moderation exercise  has  been  undertaken
even though it had not been notified or clarified  at  any  stage  that  the
examination would be subject to this scrutiny.   Whilst the 2006  Guidelines
were placed before and were duly approved by  the  Full  Court,  it  appears
that the 2012 Guidelines had not been placed before the Full Court but  were
followed by the three Judge Committee.

3     Learned Senior Counsel for the High Court of Calcutta has  strenuously
submitted that moderation has been carried out strictly in  conformity  with
the  decision  of  this  Court  in  Sanjay  Singh  v.  U.P.  Public  Service
Commission, Allahabad (2007) 3 SCC  720.   It  deserves  to  be  immediately
underscored that the Rules  for  that  examination  envisaged  a  moderation
exercise whereas this feature is absent so far as  the  subject  examination
is concerned.    We must immediately express the  view  that  this  argument
has no merit since Moderation is merely a method to ensure that the  marking
or valuation is free from even unintended discrimination or inequality.

4     Learned Single Judge was of the  opinion  that  the  ratio  of  Sanjay
Singh had not been comprehensively followed, in  that  neither  was  a  Head
Examiner appointed, nor was a meeting held for  the  purpose  of  discussing
the question paper  and  the  possible/model  answer  thereto.  The  learned
Single Judge, therefore, found in favour of the  Writ  Petitioner/Appellant.
The learned Single Judge had also noted that  of  the  three  examiners  the
junior-most judge have  been  appointed  as  the  moderator.   It  was  also
emphasised by the learned Single Judge that instead of moderation,  in  fact
a re-assessment of the answer  book  of  the  Writ  Petitioner/Appellant  of
Paper No.II has  been  carried  out.   Noting  that  if  the  Appellant  had
received three marks  more  in  Paper  II  even  after  moderation  (i.e.  a
deduction of 15 marks instead of 18  marks)  she  would  have  qualified  to
participate in the viva voce/Interview, the learned Single Judge  held  that
the Appellant was unjustifiably excluded from the zone of consideration  and
was, therefore,   entitled to the relief as claimed in  the  petition.   The
direction that was issued was to award the Appellant 55 marks  in  Paper  II
(i.e. without any moderation whatsoever) and to recast her position  in  the
merit list accordingly; and further that the  Selection  Board  should  take
her interview within the least possible time and if the  Appellant  did  not
qualify after the Interview the candidate who would  be  otherwise  entitled
as per her/his merit panel should be appointed.

5     In the Impugned Judgment the endeavour of the learned  Division  Bench
was palpably to decide the matter  within  the  confines  of  Sanjay  Singh.
However, they have pointedly clarified the Judgment is not to  be  read  and
interpreted like a statute, which is the ratio of judgment  of  this  Court.
Quite palpably, this clarification was necessitated by  the  fact  that  the
High Court had not ordained a selection procedure which  was  completely  in
sync with Sanjay Singh.   In  contrast  to  the  Single  Judge  the  learned
Division Bench has played down and discounted the fact that a Head  Examiner
had not been appointed and that the Committee had not thought  it  essential
to hold a meeting to discuss the questionnaire  as  well  as  agree  on  the
acceptable/suitable/model answers thereto.   It  is  also  not  controverted
that the candidates had not been notified that any or all of the papers  may
be subjected to moderation which also is  a  distinguished  feature  to  the
examinations process in Sanjay Singh.

6     We note that the senior-most Judge of  the  three  Judge/Examiners  is
the author of the Impugned Judgment.  It requires to be  immediately  stated
that this is alarmingly irregular and tantamounts to being a Judge in  one's
own cause.  It was, therefore, imperative for the learned  Judge  to  recuse
himself  from  the  adjudication;  and  this  facet  would   ordinarily   be
sufficient  to  set  aside  the  Impugned  Judgment.   However,  keeping  in
perspective the gravity and urgency of  the  matters  in  issue  before  us,
rather than remand the dispute to the High Court for a  fresh  determination
by a Division Bench comprising learned Judges who are not connected  in  any
manner to the subject selection, we think it proper  to  proceed  to  decide
the dispute on its merits.

7     The ratio of Sanjay Singh, which is the fulcrum of the  discussion  of
every aspect of this case, is discernable from the following extract:

"23. When a large number of candidates appear  for  an  examination,  it  is
necessary to have uniformity and consistency in  valuation  of  the  answer-
scripts. Where the number of candidates taking the examination  are  limited
and only one examiner (preferably the paper-setter  himself)  evaluates  the
answer-scripts, it is to be assumed that there will  be  uniformity  in  the
valuation. But where a large number of candidates take the  examination,  it
will not be possible to get all the answer-scripts  evaluated  by  the  same
examiner. It, therefore, becomes necessary to distribute the  answer-scripts
among several examiners  for  valuation  with  the  paper-setter  (or  other
senior person) acting as the Head Examiner. When  more  than  one  examiners
evaluate the answer-scripts relating to a subject, the subjectivity  of  the
respective examiner will creep into the marks awarded by him to the  answer-
scripts allotted to him for valuation. Each  examiner  will  apply  his  own
yardstick to assess the  answer-scripts.  Inevitably  therefore,  even  when
experienced examiners receive equal  batches  of  answer-scripts,  there  is
difference in  average  marks  and  the  range  of  marks  awarded,  thereby
affecting the merit of individual candidates. This apart,  there  is  "hawk-
dove" effect. Some examiners are liberal in  valuation  and  tend  to  award
more marks. Some examiners are strict and tend to give less marks. Some  may
be moderate and balanced  in  awarding  marks.  Even  among  those  who  are
liberal or those who are strict, there may be  variance  in  the  degree  of
strictness or liberality. This means  that  if  the  same  answer-script  is
given to different examiners, there is all  likelihood  of  different  marks
being assigned. If a  very  well-written  answer-script  goes  to  a  strict
examiner and a mediocre  answer-script  goes  to  a  liberal  examiner,  the
mediocre answer-script may be awarded more marks than the excellent  answer-
script. In other words, there is "reduced valuation" by  a  strict  examiner
and "enhanced valuation" by  a  [pic]liberal  examiner.  This  is  known  as
"examiner variability" or "hawk-dove effect". Therefore, there is a need  to
evolve a procedure to ensure uniformity inter se the examiners so  that  the
effect of "examiner subjectivity" or "examiner  variability"  is  minimised.
The procedure adopted to reduce  examiner  subjectivity  or  variability  is
known as moderation. The classic method of moderation is as follows:
(i) The paper-setter of the subject normally acts as the Head  Examiner  for
the     subject.     He     is     selected     from     amongst      senior
academicians/scholars/senior civil servants/judges. Where the case is  of  a
large number of candidates, more than one examiner is appointed and each  of
them is allotted around 300 answer-scripts for valuation.
(ii) To achieve uniformity in valuation, where more  than  one  examiner  is
involved, a meeting of the Head Examiner with  all  the  examiners  is  held
soon after the examination. They discuss thoroughly the question paper,  the
possible answers and the weightage to be given to  various  aspects  of  the
answers. They also carry out a  sample  valuation  in  the  light  of  their
discussions. The sample valuation of scripts by each of them is reviewed  by
the Head Examiner and variations in assigning marks are  further  discussed.
After such discussions, a consensus is arrived at in regard to the norms  of
valuation to be adopted. On  that  basis,  the  examiners  are  required  to
complete the valuation of answer-scripts.  But  this  by  itself,  does  not
bring about uniformity of assessment inter se the  examiners.  In  spite  of
the norms agreed, many examiners  tend  to  deviate  from  the  expected  or
agreed norms,  as  their  caution  is  overtaken  by  their  propensity  for
strictness or liberality or erraticism or carelessness during the course  of
valuation. Therefore, certain further corrective steps become necessary.
(iii) After the valuation is completed by the examiners, the  Head  Examiner
conducts a random sample survey of the corrected  answer-scripts  to  verify
whether the norms evolved in the meetings of  examiner  have  actually  been
followed by the examiners. The process of random sampling  usually  consists
of scrutiny of some top level answer-scripts and some answer books  selected
at random from the batches of answer-scripts valued by  each  examiner.  The
top level answer books of each examiner are revalued by  the  Head  Examiner
who carries out such corrections or alterations in the  award  of  marks  as
he, in his judgment,  considers  best,  to  achieve  uniformity.  (For  this
purpose, if necessary certain statistics like distribution of candidates  in
various marks ranges, the average  percentage  of  marks,  the  highest  and
lowest award of  marks,  etc.  may  also  be  prepared  in  respect  of  the
valuation of each examiner.)
(iv)  After  ascertaining  or  assessing  the  standards  adopted  by   each
examiner, the Head Examiner may confirm  the  award  of  marks  without  any
change if the examiner has followed the agreed norms, or suggests upward  or
downward moderation, the quantum of  moderation  varying  according  to  the
degree of liberality or strictness in marking. In  regard  to  [pic]the  top
level answer books revalued by the Head Examiner,  his  award  of  marks  is
accepted as final. As regards the other answer books below  the  top  level,
to achieve maximum measure of uniformity inter se the examiners, the  awards
are moderated as per the recommendations made by the Head Examiner.
(v) If in the opinion of  the  Head  Examiner  there  has  been  erratic  or
careless marking by any examiner, for which it is not feasible to  have  any
standard  moderation,  the  answer-scripts  valued  by  such  examiner   are
revalued either by the Head Examiner or any other examiner who is  found  to
have followed the agreed norms.
(vi) Where the number of candidates is very  large  and  the  examiners  are
numerous, it may be difficult for one Head Examiner to assess  the  work  of
all the examiners. In such a situation,  one  more  level  of  examiners  is
introduced. For every  ten  or  twenty  examiners,  there  will  be  a  Head
Examiner who checks the random samples  as  above.  The  work  of  the  Head
Examiners, in turn,  is  checked  by  a  Chief  Examiner  to  ensure  proper
results.
The above procedure of "moderation" would bring in  considerable  uniformity
and consistency. It should be noted that absolute uniformity or  consistency
in valuation is impossible to achieve where there are several examiners  and
the effort is only to achieve maximum uniformity".


8     It appears to  us  to  be  uncontrovertibly  comprehensible  that  the
cornerstone, nay keystone, of the method of moderation  enunciated  by  this
Court in Sanjay Singh postulates the existence of a  Head  Examiner  who  is
usually the paper-setter also.  In this case the  Respondents  have  neither
asseverated nor  established  that  a  Head  Examiner  had  been  appointed.
Learned Senior Counsel had adumbrated that a multi person Committee  of  the
High Court was  entrusted  with  this  fundamental  duty  and  that  in  all
probabilities this Committee selected the questionnaire from  the  multitude
of questions suggested for the subject.    The  fundamental  predication  of
the paragraph 23(i) and (ii) of Sanjay Singh,  therefore,  does  not  exist.
Even if that were to be overlooked, no meeting was  convened  in  which  the
examiners were present so as to discuss the substance of the  questions  and
reach  a  consensus  as  regards  suitable/model  answers   thereto.   Quite
evidently, the keystone on which the structure  of  Sanjay  Singh  had  been
painstakingly constructed,  has  been  removed  with  the  result  that  the
edifice has crumbled down.   It is not logical for the basic features to  be
ignored and thereafter to follow other elements  for  that  will  become  an
incorrect extrapolation.   Furthermore, we find  no  justification  for  the
junior-most Judge/examiner  to  have  been  given  the  formidable  task  of
moderation.  In the course of argument,  we  had  requested  learned  Senior
Counsel for the High Court to provide us with the curriculum  vitae  of  the
learned Judges in order to appreciate this  decision;  it  could  have  been
that he possessed an academic background or previous experience with  regard
to the conduct of Examination which made him the most suitable  amongst  the
three Examiners to perform the task of moderation, but  we  could  not  find
any additional  criteria  to  support  his  candidature  as  the  Moderator.
Furthermore, we find that the marks awarded by the 1st  Examiner  have  been
left unchanged, except of cosmetic  alterations.    In  fact,  there  mostly
appears to be a variation of nil or 0.5 marks after the  moderation  whereas
large scale changes have been  effected  so  far  as  the  2nd  Examiner  is
concerned.   Assessment of answer books by an examiner  is  intrinsically  a
subjective exercise making it a rarity  for  two  of  them  award  the  same
percentage or marks out of 100.    It  is,  therefore,  surprising  to  note
that the Moderator's subjectivity is almost identical to  that  of  the  1st
Examiner,  but  drastically  different  to  the  2nd  Examiner.    This  has
persuaded us to conclude that what has transpired in actuality  is  a  fresh
assessment and not a moderation of marks already  awarded  by  an  examiner.
This is not the  purpose  or  objective  behind  moderation.   As  has  been
clearly spelt out in Sanjay Singh, where there are numerous examiners it  is
but to be expected that one may be more liberal when  compared  to  another,
who may even be strict, giving birth to the 'hawk-dove'  effect,  which  has
so perspicuously and graphically been  explained  in  Sanjay  Singh.     The
avowed  purpose  behind  moderation  is  to  "to  achieve  uniformity",   to
eradicate as far as possible the 'hawk-dove' effect.  If  mistaking  in  the
valuation of Answer-books are found to be rampant  in  the  opinion  of  the
Head Examiner, a  fresh  evaluation  would  have  to  be  undertaken,  since
moderation by definition cannot remove widespread mistakes.  It  appears  to
us that sub-para (iii) of Sanjay  Singh  has  been  misconstrued  and  hence
misapplied in the Impugned Judgment whilst it has been correctly applied  by
the learned Single Judge.

9     Revaluation as envisaged in the paragraph 23 of Sanjay  Singh  has  to
be undertaken by the Head Examiner/Paper Setter who,  as  has  already  been
noted, is non-existent in  the  present  case.    The  effort  would  be  to
eradicate the 'hawk-dove' syndrome, and this is achieved  by  computing  the
'mean' and, thereafter, to add or deduct,  across  the  board,  in  all  the
Answer-sheets.  It cannot be disputed that this is not what  has  transpired
in the present case since quite apparently moderation has been  carried  out
in respect of the assessment/marking of the 2nd Examiner  and  that  too  in
Paper No. II.   So far as most of the candidates whose  answer  scripts  had
been reassessed afresh, the reduction averages 10  marks  which,  therefore,
constitutes the mean.  Therefore, the deduction of as many as  18  marks  so
far as the  Appellant  is  concerned  is  not  logical  or  justified  as  a
consequence of moderation.   We also think that a moderator  should  give  a
long and serious thought  to  the  correctness  of  his  assessment  on  the
realization he finds that the top-most candidate stands disqualified by  the
purported exercise  of  moderation.     As  we  have  already  noted  above,
instead of deducting 18 marks if  even  15  marks  had  been  deducted,  the
Appellant who has scored the highest marks before moderation and the  second
highest marks even after moderation, would have qualified for  being  called
to the Interview/viva voce.  A  grave  injustice  has  been  caused  to  the
Appellant.  The learned Division  Bench  should  have  been  alive  to  this
injustice since it had before it the judicial determination of  the  learned
Single Judge.  We shall abjure from making any further observation.


10    On the first hearing of this matter,  we  had  been  informed  by  Mr.
Gopal  Subramanium,  learned  Senior  Counsel  that  one  vacancy  has  been
preserved during the pendency of the Writ Petition as well  as  the  Appeal,
which position we had ordered should continue.


11    The Appeal is allowed and the Impugned Judgment is set  aside.   Since
an effort of moderation has been carried out we hold that a deduction of  10
marks being the appropriate mean arrived at be  deducted  from  the  initial
marks of 55 obtained by the Appellant in Paper II.  Despite  this  deduction
the Appellant will remain at second position in the merit  list.   In  fact,
the position would be identical even if the Appellant  were  to  be  awarded
the minimum marks of 40 per cent, i.e.,  by  deducting  15  marks  from  the
original marks obtained by her.  We  direct  the  Respondent-High  Court  to
interview the Appellant within one week  from  its  receiving  knowledge  of
this Judgment.   The  result  thereof  must  be  declared  within  one  week
thereafter.  The Hon'ble Chief  Justice  shall  ensure  that  the  Interview
Committee does not comprise any of  the  three  Examiners.   If  the  result
remains unfavourable to the Appellant the post shall remain unfilled  for  a
period of 30 days therefrom.


12    There will be no orders as to costs.


                                           ...............................J.
                                                   [VIKRAMAJIT SEN]


                                           ...............................J.
                                                     [C. NAGAPPAN]
New Delhi;
February 19, 2015.