Raveendran, J. - (1.) THESE petitions under Article 32 of the Constitution of India have been filed by the unsuccessful candidates who appeared in the examinations conducted by the Uttar Pradesh Public Service Commission ('Commission for short) for recruitment to the posts of Civil Judge (Junior Division).
(2.) ON the request of the Allahabad High Court, to conduct the examination for filling 347 posts of Civil Judge (Junior Division), the Commission issued an advertisement in the Employment News dated 28.11.2003. As many as 51524 candidates appeared for the "U.P. Judicial Service Civil Judge, (Junior Division) Preliminary Examination, 2003" conducted by the Commission on 21.3.2004. The preliminary examination was of 'objective' type consisting of two papers - General Knowledge and Law. The result was declared on 30.6.2004 and 6046 candidates were declared qualified to appear for the "U.P. Civil Judge (Junior Division) Examination (Main), 2003" which was of 'descriptive' (conventional) type. The Main examination consisted of five papers (each carrying 200 marks) - General Knowledge, Language, Law I, II and III - and was held between 5th and 7th October, 2004. The number of candidates who took the said examination was 5748. The answer scripts relating to each subject were distributed to several examiners for valuation, as it was not possible to get the large number evaluated by a single examiner. The number of examiners, to whom the answer-scripts were distributed for valuation, were as follows: General Knowledge - 18, Language - 14, Law-I - 11, Law-II - 10, and Law-III - 14. The marks assigned by the examiners were subjected to 'statistical scaling' and the results of written examination based on such scaled marks, were declared on 7.3.2005. Thereafter, 1290 candidates were interviewed between 14.4.2005 and 26.4.2005. After such interview, the Commission declared the final results of the examination on 1.5.2005 based on the aggregate of 'scaled marks' in the written (Main) examination and the marks awarded in the interview. On the recommendations made by Commission, appointments were made to 347 posts of Civil Judge, Junior Division. The petitioners, who were unsuccessful, are aggrieved. They contend that the statistical scaling system adopted by the Commission is illegal as it is contrary to the Uttar Pradesh Judicial Service Rules, 2001. They also contend that conversion of their raw marks into scaled marks, is illegal as it was done by applying an arbitrary, irrational and inappropriate scaling formula. It is submitted that the Commission's exercise of subjecting the marks secured by the candidates to scaling, has resulted in meritorious students being ignored, and less meritorious students being awarded higher marks and selected, thereby violating the fundamental rights of the candidates. 1) W.P. [C] No.165/2005 was filed on 5.4.2005 even before the final results were declared, praying (i) for a direction to the Commission not to adopt the system of scaling and to declare the results of the Main Examination on the basis of actual marks obtained by the candidates; and (ii) for a direction that the petition be heard by a Bench of three or more Judges as the decision of a Bench of two Judges of this Court in U.P. Public Service Commission v. Subhash Chandra Dixit [2003 (12) SCC 701] upholding the system of scaling adopted by the Commission does not lay down the correct law. 2) The other petitions were filed after declaration of the final results, in effect, for the following reliefs: (a) for quashing the results of the U.P. Civil Judge (Junior Division) Main Examination-2003 declared on 7.3.2005 and the final results declared on 1.5.2005 on the basis of scaled marks and direct the Commission to declare the results on the basis of actual marks secured by the candidates; (b) to direct an inquiry by an independent agency into the irregularities committed by the Commission in the said examination; (c) for a declaration that the use of 'statistical scaling' in regard to the examinations for the subordinate judiciary is unconstitutional; and (d) to reconsider the law laid down in Subhash Chandra Dixit (supra).
(3.) THE respondents raised the threshold bar of maintainability. It is submitted that this Court in S. C. Dixit (supra), has rejected identical grounds of attack and upheld the statistical scaling method adopted by the Commission in the examination conducted in 2000. It is contended that the prayers in these petitions under Article 32, in effect, seek setting aside or review of the decision in S. C. Dixit, and that is impermissible. Reliance is placed on the Constitution Bench decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [2002 (4) SCC 388], to contend that a writ petition under Article 32 would not lie to challenge any judgment of this Court or that of a High Court, as superior courts are not 'State' within the meaning of Article 12 and their judgments cannot be termed as violative of fundamental rights. It is also pointed out that Review Petition (Civil) No. 162/2004 and Curative Petition No.43/2004 filed in respect of S. C. Dixit (supra) were rejected on 04.2.2004 and 6.10.2004 respectively. In regard to merits, the Commission contended that the 'statistical scaling' method adopted in regard to Civil Judge (Junior Division) Examination is legal, scientific and sound and its policy to apply statistical scaling to marks of written examination, was based on experts' opinion as also the experience gained in conducting several examinations. It is submitted that under the proviso to Rule 50 of the U.P.Public Service Commission (Procedure and Conduct of Business) Rules, 1976, it is entitled to adopt any formula or method or device to eliminate variation in marks; that it found variation in the marks awarded by different examiners on account of a phenomenon known as 'examiner variability' and to eliminate it, statistical scaling was introduced. It is further submitted that matters relating to the conduct of Examination, evaluation of answer-scripts, application of methods to bring in uniformity in evaluation are matters of policy involving technical and scientific decisions based on expert opinion; that courts are not equipped to pronounce upon such matters and, therefore, should not interfere in the absence of manifest arbitrariness or mala fides; and that, at all events, in the absence of an opinion by a body of experts in the field of statistics certifying that the system of scaling adopted by the Commission is unsound and irrational, there should be no interference. Lastly, it is submitted that if the court, for any reason, should hold that the existing scaling system should be substituted, that should be done prospectively.;