SUJASHA MUKHERJIversusTHE HONBLE HIGH COURT OF CALCUTTA, THR. REGISTRAR & ORS.

                     [2015] 2 S.C.R. 480


A                  SUJASHA MUKHERJI

                             v.

      THE HON'BLE HIGH COURT OF CALCUTTA,
             THR. REGISTRAR & ORS.
B
             (Civil Appeal No. 2051 of 2015)

                   FEBRUARY 19, 2015

c     [VIKRAMAJIT SEN AND C. NAGAPPAN, JJ.)

        Service Law - Judicial Service - Selection -
    To the post of District Judge - One of the
    candidates (appellant) obtained highest marks in
    written test comprising of 5 papers - But on
0
    moderation of her marks in one of the papers from
    55% to 37%, she was disqualified from further
    consideration i.e. appearing in interview/ viva voce
    on the ground that she did not obtain minimum
E   marks of 40% in each paper - Held: The
    fundamental predications have not been followed
    for moderation - Instead of moderation, in fact a
    re-assessment of the answer-scripts of the appellant
    was done - Most of the candidates whose answer-
F   scripts had been reassessed, the reduction of marks
    averages to 10 marks, hence deduction of 18 marks
    of the appellant was not justified - After deduction
    of 10 marks from 55 marks, the appellant would
    remain at second position in the merit list - The
G   respondent-High Court directed to hold interview of
    the appellant.

       Natural Justice - Litigation challenging selection

H                           480
   SUJASHA MUKHERJI v. HIGH COURT OF             481
        CALCUTTA, THR. REGISTRAR

process of the post of District Judge - Senior most A
examiner (Judge of High Court) was the judge in
the case - Held: Such practice is alarmingly
irregular and tantamount to being a judge in one's
own cause - It was imperative for the Judge to
recuse himself from the adjudication - Judicial B
Propriety.

   Allowing the appeal, the Court

     HELD:1. The senior-most Judge of the three c
Judge/Examiners is the author of the impugned
judgment. This is alarmingly irregular and
tantamounts to being a Judge in one's own cause.
It was, therefore, imperative for the Judge to
recuse himself from the adjudication; and this o
facet would ordinarily be sufficient to set aside
the Impugned Judgment. However, keeping in
perspective the gravity and urgency of the matters
in issue, rather than remanding the dispute to the
High Court, it is proper to proceed to decide the E
dispute on its merits. [Para 6] [487-D-G]

     2.1 The keystone of the method of moderation
postulates the existence of a Head Examiner who
is usually the paper-setter also. In the present F
case the respondents have neither asseverated
nor established that a Head Examiner had been
appointed. A multi person Committee of the High
Court was entrusted with this fundamental duty
and that in all probabilities this Committee G
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 case, therefore, does not
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482     SUPREME COURT REPORTS            [2015] 2 S.C.R.


A exist. 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. The
  keystone on which the structure of *Sanjay Singh
B 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.
C Furthermore, there is no justification for the junior-
  most Judge/examiner to have been given the
  formidable task of moderation. [Para 8] [493-8-H]

       2.2 The avowed purpose behind moderation is to
D "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
E moderation by definition cannot remove widespread
  mistakes. In the present case what has transpired in
  actuality is a fresh assessment and not a moderation
  of marks already awarded by an examiner. It appears
F that sub-para (iii) of *Sanjay Singh case has been
  misconstrued and hence misapplied in the impugned
  judgment whilst it has been correctly applied by the
  Single Judge. [Para 8] [494-H; 495-A-B]

     2.3 So far as most of the candidates whose
G 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
H concerned is not logical or justified as a
    SUJASHA MUKHERJI v. HIGH COURT OF                  483
         CALCUTTA, THR. REGISTRAR

consequence of moderation. A moderator should A
give a long and serious thought to the
correctness of assessment on the realization he
finds that the top-most candidate stands
disqualified by the purported exercise of
moderation. A grave injustice has been caused to 8
the appellant.[Para 9) (495-F-H; 496-A-B]
    2.4 Since an effort of moderation has been
carried out it is held that a deduction of 10 marks
being the appropriate mean arrived at, be
deducted from the initial marks of 55 obtained by C
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% i.e., by deducting 15 0
marks from the original marks obtained by her.
The respondent-High Court is directed to
interview the appellant. The Chief Justice shall
ensure that the Interview Committee does not
comprise any of the three Examiners. [Para 11)
(496-E-H; 497-A]                                     E

    *Sanjay Singh     v.  U. P. Public  Service
Commission, Allahabad, (2007) 3 SCC 720 = 2007
(1) SCR 235 - referred to
                                                        F
                Case Law Reference
 2007 (1) SCR 235       Referred to       Para 3
    CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2051 of 2015
                                                        G
    From the Judgment and Order dated 04.07.2014
of the High Court at Calcutta in F. M.A. No. 2538 of
2013.

   Sanjiv Sen, Dev Roy, Abhishek Sarkar, Partha         H
484         SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A Sri for the Appellant.

         Jaideep Gupta, Raja Chatterjee, Runa Bhuyan, M.
      Parmar, G. S. Chatterjee for the Respondents.

B         The Judgment of the Court was delivered by

          VIKRAMAJIT SEN, J. 1. Leave granted.

      2. Succinctly stated the significant and singular facts
C 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
D     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
E     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
F     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
G     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-
H     holder in the Calcutta University; she quite obviously also
    SUJASHA MUKHERJI v. HIGH COURT OF         485
CALCUTTA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

possesses extraordinarily high academic and A
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 B
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 C
Full Court but were followed by the three Judge
Committee.

    3. Learned Senior Counsel for the High Court
of Calcutta has strenuously submitted that D
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 E
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 F
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 G
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 H
486     SUPREME COURT REPORTS           [2015] 2 S.C.R.

A 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
B 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
C 15 marks instead of 18 marks) she would have
  qualified to participate in the viva voce/lnterview,
  the learned Single Judge held that the Appellant
  was unjustifiably excluded from the zone of
  consideration and was, therefore, entitled to the
0
  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
E 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
F 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.
G 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
H
    SUJASHA MUKHERJI v. HIGH COURT OF         487
CALCUTTA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

selection procedure which was completely in sync A
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 B
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 C
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              D
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       E
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      F
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.                              G

    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:
                                                        H
488    SUPREME COURT REPORTS            [2015] 2 S.C.R.

A          "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
B     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
c     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
D
      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
E     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
F     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.
G     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
H
    SUJASHA MUKHERJI v. HIGH COURT OF         489
CALCUTTA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

  marks. Even among those who are liberal          A
  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       B
  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         c
  answer-script. In other words, there is
  "reduced valuation" by a strict examiner and
  "enhanced valuation" by a .liberal examiner.
  This is known as "examiner variability" or
                                                   D
  "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         E
  procedure adopted to reduce examiner
  subjectivity or variability is known as
  moderation. The classic method of
  moderation is as follows:
                                                   F
        (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        G
    large number of candidates, more than
    one examiner is appointed and each of
    them is allotted around 300 answer-
    scripts for valuation.
                                                   H
490   SUPREME COURT REPORTS             [2015] 2 S.C.R.


A         (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
B     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.
c     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
D
      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
E     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
F     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.
G
          (iii) After the valuation is completed
      by the examiners, the Head Examiner
      conducts a random sample survey of
      the corrected answer-scripts to verify
H
    SUJASHA MUKHERJI v. HIGH COURT OF         491
CALCUTIA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

    whether the norms evolved in the            A
    meeti.ngs 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           B
    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   c
    alterations in the award of marks as he,
    in his judgment, considers best, to
    achieve uniformity. (For this purpose, if
    necessary      certain   statistics  like
                                                D
    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            E
    examiner.)

        (iv) After ascertaining or assessing
    the standards adopted by each
    examiner, the Head Examiner may
                                                F
    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         G
    degree of liberality or strictness in
    marking. In regard to the top level
    answer books revalued by the Head
    Examiner, his award of marks is
                                                H
492    SUPREME COURT REPORTS            [2015] 2 S.C.R.


A       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
B       made by the Head Examiner.

             (v) If in the opinion of tl)e Head
        Examiner there has been erratic or
        careless marking by any examiner, for
C       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
D       followed the agreed norms.

            (vi) Where the number of candidates
       is very large and the examiners are
       numerous, it may be difficult for one
E      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
F      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.
G
          The above procedure of "moderation"
      would bring in considerable uniformity and
      consistency. It should be noted that absolute
      uniformity or consistency in valuation is
H
    SUJASHA MUKHERJI v. HIGH COURT OF         493
CALCUTTA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

   impossible to achieve where there are           A
   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, B
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 C
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 D
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 E
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 F
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. G
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
                                                   H
494     SUPREME COURT REPORTS           [2015] 2 S.C.R.


A 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
B 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
C 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
0
  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
E 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
F 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,
G 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
H
     SUJASHA MUKHERJI v. HIGH COURT OF         495
 CALCUTTA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

'hawk-dove' effect. If mistaking in the valuation of A
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 B
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      C
 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        D
'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/         E
marking of the 2nd Examiner and that too in Paper
No. 11. So far as most of the candidates whose
answer scripts had been reassessed afresh, the
reduction averages 10 marks which, therefore,          F
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       G
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,
                                                       H
496        SUPREME COURT REPORTS           [2015] 2 S.C.R.


A 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
B 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
C 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
D 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
E     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
F     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.
G     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
H     Chief Justice shall ensure that the Interview
    SUJASHA MUKHERJI v. HIGH COURT OF         497 .
CALCUTIA, THR. REGISTRAR [VIKRAMAJIT SEN, J.]

Committee does not comprise any of the three A
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.           B
Kalpana K. Tripathy                   Appeal allowed.