TANIYA MALIKversusTHE REGISTRAR GENERAL OF THE HIGH COURT OF DELHI

348                     [2018] REPORTS
               SUPREME COURT   10 S.C.R. 348               [2018] 10 S.C.R.


A                             TANIYA MALIK

                                      v.

      THE REGISTRAR GENERAL OF THE HIGH COURT OF DELHI

B                     (Writ Petition (Civil) No. 764 of 2017)

                              FEBRUARY 16, 2018

                [ARUN MISHRA AND AMITAVA ROY, JJ.]

C           Judicial Service – Delhi Judicial Service Examination, 2015
      – Revaluation of answer-sheet and moderation of marks – Petitioners
      sought re-valuation of the answer-sheet of criminal law paper of
      the main examination and further sought moderation of marks
      obtained by the candidates in the examination of 2015 – Held:
      Supreme Court in case of Sanjay Singh has laid down moderation to
D
      be appropriate where there are multiple examiners of the same
      subject – Where number of candidates are limited and only one
      examiner evaluates, it is to be assumed that there will be uniformity
      in valuation – In instant case, it is not disputed that only one
      examiner had evaluated the same part of one subject, therefore, it
E     was not necessary to undertake the process of moderation – Insofar
      revaluation of answer scripts are concerned, it is a settled
      proposition of law that in the absence of provision for re-evaluation,
      it cannot be ordered – Accordingly, for the examination in question,
      in the absence of provision for revaluation when the examination
      was held, it could not be resorted to – Delhi Judicial Services Rules,
F
      1970 – Constitution of India – Art.32.
             Judicial Service – Delhi Judicial Service Examination, 2015
      – Minimum marks for viva voice – Reasonability of – One of the
      petitioners was awarded 37% marks; whereas the required minimum
      was 45% in viva voce – Total 64 candidates were called for interview
G
      and 63 were selected – Only the said petitioner was declared failed
      in the viva voce examination – Petitioner contended that the
      provision prescribing minimum marks for viva voce of judicial
      services is unreasonable – Held: In instant case, out of 64

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                                       348
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                         349
                  COURT OF DELHI

candidates, only one has failed in the interview – That, in fact,         A
does not show the prejudice but is rather indicative of the fact that
performance of the petitioner was such that in spite of the Selection
Committee being most liberal, it did not find it appropriate to award
even the minimum passing marks to the said candidate – The
awarding of marks by Committee could not be said to be
                                                                          B
inappropriate – Furthermore, in rules, the minimum cut off is
prescribed – That could not have been relaxed and moreover,
relaxation is a matter of policy and considering the overall
circumstances, importance of interview, the decision not to relax
cannot be said to be unreasonable.
      Judicial Service – Delhi Judicial Service Examination, 2015         C
– Enhancement of marks by rounding off – Applicable or not – As
per advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to
be eligible to be called for interview – One of the petitioners had
obtained 49.9% marks and pleaded that it be rounded off to 50%            D
and called for an interview – Held: When a particular aggregate is
prescribed for eligibility, a person must meet the criteria without
relaxation – It is not permissible to enhance the marks by rounding
off method to make up the minimum aggregate – Thus, the principle
of rounding off method not to be applied in view of requirement to
obtain minimum aggregate marks to be called for interview in the          E
instant case.
       Judicial Service – Delhi Judicial Service Examination, 2015
– Plea for reduction of minimum cut-off marks – As per
advertisement, the candidates were required to obtain 50% marks
in aggregate and 40% in each subject in the main examination to           F
be eligible to be called for interview – One of the petitioners pleaded
to reduce the minimum cut off marks of individual subjects from
40% to 33% as she had failed only in one subject – Held: There is
no fault in prescribing the minimum passing marks for written papers
– It may happen in any examination that a person who is having            G
better aggregate may not fair well in one of the papers and may be
declared ‘failed’ – That cannot be ground to order relaxation or to
doubt the correctness of the evaluation process – No ground for
interference.

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350            SUPREME COURT REPORTS                    [2018] 10 S.C.R.


A           Dismissing the writ petitions, the Court
            HELD: Whether moderation is required to be ordered.
            1.1 Moderation is an appropriate method to bring about
      uniformity in evaluation. When several examiners manually
      evaluate answer-scripts of respective/conventional type question
B     papers in regard to the same subject, moderation is adopted as a
      method to reduce examiner’s variability. [Para 12] [358-A-B]
            1.2 This Court in Sanjay Singh case has laid down
      moderation to be appropriate where there are multiple examiners
      of the same subject. It has also been observed that where a
C     number of candidates are limited and only one examiner will
      evaluate, it is to be assumed that there will be uniformity in
      valuation. That is only where several examiners evaluate the same
      subject. There is difference in average marks and range of marks
      awarded. There is a ‘hawk-dove’ effect. Some examiners are
D     liberal and they award more marks; some examiners are strict
      and they give fewer marks, the same may be moderated. There
      may be variance in degree of strictness and liberality. It is in
      order to remove the subjectivity or variability, that the provision
      of moderation is adopted. It is not the situation in the instant
      case, hence, the decision in Sanjay Singh case rather than
E     buttressing negates the plea of moderation urged on behalf of
      the petitioners. In the instant case as it is not disputed that only
      one examiner had evaluated the same part of the one subject. It
      was not necessary to undertake the process of moderation. [Paras
      13 and 14] [361-C-D; 362-E-F]
F           Revaluation of answer-scripts
            2. It is settled proposition of law that in the absence of
      provision it cannot be ordered. In Mukesh Thakur case it was
      laid down that in the absence of provision for re-evaluation it
      cannot be resorted to and the observations which were made in
G     the case of CPIL v. Registrar General of High Court of Delhi case,
      the decision was rendered in 2016 after the examination had
      already been held, thus the provision for re-evaluation could not
      have been introduced after the examination had been held. For
      examination in question in the absence of provision for revaluation
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TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                     351
                  COURT OF DELHI

when the examination was held, it could not be resorted to.           A
[Para 15] [362-F-G; 364-D-E]
Prescription of minimum pass marks in the viva voce examination
      3.1 It is desirable to have the interview and it is necessary
to prescribe minimum passing marks for the same when the
appointment in the higher judiciary to the post of District Judge     B
is involved. The interview is the best method of judging the
performance, overall personality and the actual working
knowledge and capacity to perform otherwise the standard of
judiciary is likely to be compromised. A written examination only
tests academic knowledge, which is some time, gained without          C
possessing overall qualities, practical experience of practice and
law. [Para 17] [367-G-H; 368-A]
      3.2 It was urged that out of 64 candidates, only one has
failed in the interview. That, in fact, does not show the prejudice
but is rather indicative of the fact that the performance of the      D
petitioner was such that in spite of the Committee being most
liberal, it did not find it appropriate to award even the minimum
passing marks to the said candidate. The awarding of marks by
the Committee could not be said to be inappropriate. In the instant
case in the rules, the minimum cut off is prescribed. That could
not have been relaxed and moreover, relaxation is a matter of         E
policy and considering the overall circumstances, importance of
interview, the decision not to relax cannot be said to be
unreasonable. [Para 18] [368-G-H; 369-A-D]
      K.H. Siraj v. High Court of Kerala & Ors. [2006] 2
      Suppl. SCR 790 : (2006) 6 SCC 395 – relied on.                  F
      Rounding off of the marks
      5. When a particular aggregate is prescribed for eligibility,
a person must meet the criteria without relaxation. It is not
permissible to enhance the marks by rounding off method to make
                                                                      G
up the minimum aggregate. Thus the principle of rounding off
method could not be applied in view of requirement to obtain
minimum aggregate marks to be called for interview in the instant
case. [Paras 20 and 22] [371-D; 373-D]

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352           SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     Whether minimum cut off marks in the written examination be
      relaxed from 40% to 33% and whether the Court should interfere
      on the ground that as a person who has obtained the highest
      marks, could not clear one of the papers by narrow margin of one
      mark.
B            6. The minimum-passing marks in each of the paper could
      have been prescribed and that is absolutely necessary so as to
      adjudge the academic knowledge in various subjects. Merely by
      scoring highest marks in general knowledge and language paper
      is not going to help. Minimum knowledge in other subjects, civil
      and criminal law was also requisite and that is true for vice versa
C     too, and that is why minimum passing marks had been prescribed
      and fixation of 40% was quite reasonable and proper and it would
      be not proper for this Court to interfere in the same. There is no
      no fault in prescribing the minimum passing marks for written
      papers. It may happen in any examination that a person who is
D     having better aggregate may not fair well in one of the papers
      and may be declared ‘failed’. That cannot be a ground to order
      relaxation or to doubt the correctness of the evaluation process.
      The marks of a candidate who secured highest marks were shown,
      it became apparent that the performance of the candidate in paper
      general knowledge and language was far better as compared to
E     the performance in civil and criminal papers. Thus when a single
      examiner, has done valuation, same yardstick has been applied
      to all the candidates. There are no grounds to make interference.
      [Para 23] [373-F-G; 374-A-B]
            Ajithkumar P. & Ors. v. Remin K.R. & Ors. (2015) 16
F           SCC 778 – held inapplicable.
            Sujasha Mukherji v. The Hon’ble High Court of
            Calcutta & Ors. [2015] 2 SCR 480 : (2015) 11 SCC
            395; Himachal Pradesh Public Service Commission v.
            Mukesh Thakur & Anr. [2010] 7 SCR 189 : (2010) 6
G           SCC 759; The Registrar, Rajiv Gandhi University of
            Health Sciences, Bangalore v. G. Hemlatha and Ors.
            [2012] 8 SCR 157 : (2012) 8 SCC 568; Orissa Public
            Service Commission & Anr. v. Rupashree Chowdhary
            and Anr., [2011] 9 SCR 748 : (2011) 8 SCC 108 –
H           referred to.
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                             353
                  COURT OF DELHI

                         Case Law Reference                                   A
(2015) 16 SCC 778                 held inapplicable         Para 10
[2015] 2 SCR 480                  referred to               Para 14
[2010] 7 SCR 189                  referred to               Para 15
[2006] 2 Suppl. SCR 790           relied on                 Para 16           B
[2012] 8 SCR 157                  referred to               Para 21
[2011] 9 SCR 748                  referred to               Para 21
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
764 of 2017                                                                   C
      Under Article 32 of the Constitution of India
                                 WITH
      W. P. (C) No. 996, 896, 831, 832, 885, 938, 1046, 1063 and 1081
of 2017                                                                       D
      W. P. (C) No. 39 of 2018.
      R. S. Suri, R. Basant, Sanjay Hegde, Raju Ramachandran,
Sr. Advs., Kulbir Singh Mallik, Sandiv Kalia, Ms. Nabila Hasan, Lugman
S. Hasan (For Dr. Sushil Balwada), Nachiketa Joshi, Aviral Kashyap,
Ms. Reshmi Rea Sinha, Parveen Kumar Aggarwal, Sanjay Jain,                    E
Ms. Jasmine Damkewala, Percival Billowria, Vikram Singh, Ms. Kimpok
Loya, Rajeev Sharma, Deepak Goel, Kamal Kumar Pandey, Pardeep
Gupta, Parinav Gupta, Ms. Mansi Gupta, Sanjauy Chakraborty, Wazir
Singh Malik (for Dr. (Mrs.) Vipin Gupta), Prashant Bhushan, Ms. Neha
Rathi, Pramit Saxena, Rahul Aggarwal, Amit Pratap Singh, Annam D.             F
N. Rao, A. Venkatesh, Sudipto Sircar, Rahul Mishra, Ms. Tulika Chikker,
Ishwar Mohanty, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
       ARUN MISHRA, J. 1. The writ petitions have been filed under
Article 32 of the Constitution of India, questioning the Delhi Judicial       G
Service, 2015 Examination for which an advertisement was issued on
3.10.2015. 100 vacancies were advertised. The examination was to be
held in two stages – preliminary, thereafter, – main examination (written)
for selection of candidates for viva voce. Out of the 100 posts advertised,
68 were of the General Category; SC 12; ST 20; out of them 41, 7 and
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354            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     17 were the backlog vacancies of respective categories. Two vacancies
      were reserved for physically handicapped (blind/low vision) and two
      vacancies for physically handicapped candidates (Ortho.). The
      appointments were to be subject to the outcome of W.P. (C) No. 514 of
      2015 and C.A. No.1086 of 2013 pending in this Court and W.P. (C) No.
      2828 of 2010 pending in the High Court of Delhi.
B
             2. In Writ Petition[C] No.764 of 2017 – Taniya Malik v.
      Registrar General of the High Court of Delhi, prayer has been made
      to reduce the minimum cut off marks of individual subjects from 40% to
      33% and in the alternative, the Delhi High Court be directed to relax the
      criteria for calling for interview.
C
             3. Petitioner has urged that result of the main examination was
      announced on 12.7.2017. In the preliminary examination that was held,
      out of 8534 candidates, 914 cleared it and they appeared in the main
      examination. As per the advertisement, the candidates were required to
      obtain 50% marks in aggregate and 40% in each subject in the main
D     examination to be eligible to be called for interview. The result of the
      main examination was announced on 12.7.2017 and only 64 students, 58
      from general category and 6 from reserved category were selected for
      viva voce test. The petitioner contended that normally for an interview,
      three times the number of incumbents are to be called as compared to
E     the number of seats notified as apparent from past practice. The petitioner
      submitted a representation for rationalizing the minimum qualifying marks
      to 33% instead of 40%. However needful was not done.
             4. In W.P.[C] No.832 of 2017 prayer has been made to direct re-
      evaluation of all the papers of the said examination by an independent
F     Expert Committee headed by a retired Judge of this Court. Alternative
      prayer has been made to direct re-evaluation of the answer-sheet of
      criminal law paper of the main examination of the petitioner. Prayer has
      also been made to direct moderation of marks obtained by the candidates
      in the Examination of 2015 in the light of the decision of this Court in
      Sanjay Singh & Anr. v. U.P. Public Service Commission, Allahabad
G     & Anr. (2007) 3 SCC 720, and to quash the criteria of calling for viva
      voce for those candidates who had obtained 40% marks in each written
      paper as provided under Rule 15 of the Delhi Judicial Services Rules,
      1970. It is averred that as only a minuscule number of 24 candidates
      could obtain more than 50% marks in Criminal Law paper, prima facie
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TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                               355
        COURT OF DELHI [ARUN MISHRA, J.]

it appears that Criminal Law paper has been very strictly marked and            A
marks given do not reflect the actual performance of the candidates.
       5. In W.P. [C] No.996 of 2017 – Ms. Swati Gupta v. Registrar
General, High Court of Delhi, a prayer has been made to quash the
result of the examination and prayer for revaluation of the papers has
been made. Petitioner has obtained 49.9% marks. She has prayed that it          B
be rounded off to 50% as is normally done and she should be called for
interview.
       6. In WP [C] No.1081 of 2017 – Naveen v. Registrar General,
High Court of Delhi, prayer has been made to set aside the result of
viva voce dated 25.9.2017 so far as the petitioner has been declared not        C
qualified in viva voce test and to declare him qualified for selection on
the vacant post available in his reserved category or to conduct fresh
viva voce and the provision prescribing minimum marks for viva voce of
judicial services is unreasonable. Petitioner has been awarded 37%
marks; whereas the required minimum was 45% marks in viva voce.
Total 64 candidates were called for interview as against 100 vacancies          D
that were advertised and 63 have been selected. Only the petitioner had
been declared failed in the viva voce examination. The High Court should
have relaxed the marks for interview. In rest of petitions, the relief prayed
is more or less similar to aforesaid writ petitions.
        7. In the counter affidavit filed by the Registrar General of High      E
Court Delhi, it is contended that after participating in the process of
selection under the Delhi Judicial Services Rules, 1970 (for short, ‘the
1970 Rules’), it is not open to question the process of the examination.
The preliminary examination is a screening test carrying maximum marks
of 200. Minimum qualifying marks in the preliminary examination were            F
60% for general and 55 for reserved categories. The main examination
(written) consisted of 4 papers, namely, G.K. & Language, Civil Law-I,
Civil Law-II and Criminal Law and carried a weightage of 250, 200, 200
and 200 marks respectively. Each paper is divided into two parts, viz.,
Part A and Part B. A separate individual examiner examined each part
of all the papers. There were no multiple examiners for each part.It was        G
necessary to obtain minimum 40% marks and 35% marks respectively
in each of the four papers; total of Part A and Part B, and also secure at
least 50% marks and 45% marks respectively in aggregate in all the
four papers in order to qualify for the next stage i.e. viva voce.
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356             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A             8. It is further pleaded that calling the number of candidates would
      depend upon the number of qualified candidates in the written
      examination. Unqualified candidates could not have been called for
      interview. Senior-most officers of the Delhi Higher Judicial Services
      were responsible for setting up of the examination papers and evaluating
      the answer-sheets. As a separate individual examiner did the evaluation,
B
      the question of moderation/rationalization as demanded by the petitioners
      did not arise. The practice adopted for evaluation of answer sheet is that
      the roll number is kept secret from the examiner. A code number is
      written on both sides of the first page of answer-sheet. Copies of answer-
      sheets were supplied to the petitioner after the declaration of the result.
C     In CPIL v. Registrar General of High Court of Delhi in W.P. [C]
      No.514 of 2015, the suggestions given by this Court were to be kept in
      view for future examinations. The order was passed on 26.7.2016 much
      after the main examination had been held. The modalities of the
      examination had been worked out much before the decision of this Court
      in the said matter. Thus, it was not possible to implement the said decision.
D
      There is no procedure or provision for revaluation of answer-sheets in
      the said examination held for 2015 vacancies under the 1970 Rules. No
      model answers were provided to the examiners.
             9. In the case of Naveen v. Registrar General, High Court of
      Delhi, W.P. [C] No.1081 of 2017 it is the stand taken that viva voce
E     carries 150 marks; candidates in General Category must secure 50%
      marks and candidates of Reserved Category must secure 45% marks to
      be eligible for recommendation for appointment to the service. The marks
      obtained in the viva voce were to be added to the marks obtained in the
      main examination to determine the merit position of the successful
F     candidates. The petitioner secured only 55 marks out of 150 marks, i.e.
      37%, hence, was not eligible for being recommended for appointment to
      the service. Even though all the vacancies could not be filled, it does not
      imply that the cut off of 45% marks fixed for interview should be removed.
      Fixation of cut off marks could not be said to be arbitrary or unreasonable.
      Viva-voce plays an important role in judging candidates’ caliber/personality,
G     perception and suitability.
            10. Learned counsel appearing for the petitioners urged that fixation
      of 40% cut off marks in written paper was not appropriate. Even the
      candidate who has secured the highest marks could not obtain the requisite
      minimum marks in one of the papers and missed by a whisker i.e. by
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TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                                357
        COURT OF DELHI [ARUN MISHRA, J.]

one mark. There was an unduly harsh marking of criminal law paper.               A
Only a few candidates could obtain more than 50% marks. It does not
sound to logic that the candidate who has obtained highest marks in
aggregate, would fail in one of the papers, thus the case is fit for directing
the moderation as held in Sanjay Singh (supra) and Ajithkumar P. &
Ors. v. Remin K.R. & Ors. (2015) 16 SCC 778. Reliance has also been
                                                                                 B
placed on the decision in Sujasha Mukherji v. The Hon’ble High Court
of Calcutta & Ors. (2015) 11 SCC 395. Prayer has also been made to
reduce the cut off in written papers to 33% from 40%. In the case of
Swati Gupta (supra), additional ground has been urged to round off the
marks from 49.9% to 50% to make her eligible for viva voce. In the
case of WP [C] No.832/2017 – Charu Dhankar v. Registrar General                  C
of the High Court of Delhi, in addition, it was urged that revaluation of
answer-sheets of criminal law paper be ordered and the requirement of
obtaining 40% marks be set aside. In the case of Naveen v. Registrar
General, High Court of Delhi, a prayer has been made not to fix the
minimum marks for viva voce. It was urged that fixation of minimum
                                                                                 D
passing marks in interview was unreasonable and alternative prayer has
been made to relax the minimum passing marks for the SC category
candidates for selection. It was urged that petitioner was the only person
who has failed in the interview. Out of 64 candidates, 63 had been cleared
in interview.
       11. Per contra, it was contended on behalf of the High Court of           E
Delhi that in case of Sanjay Singh (supra), there were multiple examiners
as such moderation was ordered. In case where a single examiner has
examined all the papers, moderation is not at all required. Minimum pass
marks have been fixed considering the importance of the Higher Judicial
Service and as the appointment was to be made on the post of Higher              F
Judicial Service. Minimum marks for interview were also rightly
prescribed. In the written examination it was necessary to obtain aggregate
of 50% for General Category, thus there was no question of rounding
off. A candidate who obtains lesser marks than the minimum prescribed
for aggregate could not have been called for interview by the process of
rounding off. Lower marks were prescribed for reserved category                  G
candidates as compared to General Category candidates. For General
Category, passing marks in interview were 50% whereas passing marks
for reserved category candidates were 45%.

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358            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           12. First we take up the question whether moderation is required
      to be ordered. Moderation is an appropriate method to bring about
      uniformity in evaluation. When several examiners manually evaluate
      answer-scripts of respective/conventional type question papers in regard
      to the same subject, moderation is adopted as a method to reduce
      examiner’s variability. For the purpose of issuance of direction for
B
      moderation reliance has been placed on the decision of this Court in
      Sanjay Singh (supra) in which, it was observed:
            “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
C           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
D           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 examiner 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
E           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
F           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
G           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
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TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                             359
        COURT OF DELHI [ARUN MISHRA, J.]

    ‘reduced valuation’ by a strict examiner and ‘enhanced valuation’         A
    by a liberal examiner. This is known as ‘examiner variability’ or
    ‘Hawk-Dove effect’. Therefore, there is a need to evolve a
    procedure to ensure uniformity interse the Examiners so that the
    effect of ‘examiner subjectivity’ or ‘examiner variability’ is
    minimised. The procedure adopted to reduce examiner subjectivity
                                                                              B
    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 of a large number of candidates, more than one examiner is           C
    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                D
    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           E
    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           F
    their caution is overtaken by their propensity for strictness or
    liberality or eroticism 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                 G
    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
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360      SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     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
B
      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,
C     or suggest upward or downward moderation, the quantum of
      moderation varying according to the 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 accepted as final. As
      regards the other answer books below the top level, to achieve
D     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
E     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
F     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.

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 impossible to achieve where
      there are several examiners and the effort is only to achieve
      maximum uniformity.

H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                              361
        COURT OF DELHI [ARUN MISHRA, J.]

      27. But some Examining Authorities, like the Commission, are of          A
      the view that scaling can be used, not only where there is a need
      to find a common base across different subjects (that is bringing
      the performance in different subjects to a common scale), but
      also as an alternative to moderation, to reduce examiner variability
      (that is where different examiners evaluate answer scripts relating
                                                                               B
      to the same subject).”
       13. This Court in Sanjay Singh (supra) has laid down moderation
to be appropriate where there are multiple examiners of the same subject.
It has also been observed that where a number of candidates are limited
and only one examiner will evaluate, it is to be assumed that there will be
uniformity in valuation. That is only where several examiners evaluate         C
the same subject. There is difference in average marks and range of
marks awarded. There is a ‘hawk-dove’ effect. Some examiners are
liberal and they award more marks; some examiners are strict and they
give fewer marks, the same may be moderated. There may be variance
in degree of strictness and liberality. It is in order to remove the           D
subjectivity or variability, that the provision of moderation is adopted. It
is not the situation in the instant case, hence, the decision in Sanjay
Singh (supra) rather than buttressing negates the plea of moderation
urged on behalf of the petitioners.
       14. In relation to plea of moderation, reliance has also been placed    E
on the decision of this Court in Sujasha Mukherji v. High Court of
Calcutta through Registrar & Ors. (2015) 11 SCC 395. In the said
case there were three examiners i.e. multiple examiners and moderation
had not been adopted. Only re-assessment was carried out. The proper
mode of moderation was not followed as observed in Sanjay Singh
(supra). Mean marks were not computed to liquidate ‘hawk-dove’                 F
syndrome. Marks awarded by the first examiner were more or less
unchanged as compared to other. In the said context, this Court in
Sujasha Mukherjee (supra) has observed:
      “11. Revaluation as envisaged in the paragraph 23 of Sanjay Singh
      v. U.P. Public Service Commission (2007) 3 SCC 720 has to be             G
      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,
                                                                               H
362             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A            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
B
             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
C            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
D
             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.”
             It is apparent that in Sujasha Mukherjee (supra) the method of
E     moderation as envisaged in Sanjay Singh (supra) was not followed. As
      such this Court interfered. However, in the instant case as it is not disputed
      that only one examiner had evaluated the same part of the one subject.
      In our considered opinion it was not necessary to undertake the process
      of moderation.
F           15. Now we take up the second submission with respect to
      revaluation of answer-scripts. It is settled proposition of law that in the
      absence of provision it cannot be ordered. In Himachal Pradesh Public
      Service Commission v. Mukesh Thakur & Anr. (2010) 6 SCC 759,
      this Court has considered various decisions and observed:
G            “24. The issue of revaluation of answer book is no more res integra.
             This issue was considered at length by this Court in Maharashtra
             State Board of Secondary and Higher Secondary Education and
             Anr. v. ParitoshBhupeshKurmarsheth wherein this Court rejected
             the contention that in absence of provision for re-evaluation, a
H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                           363
        COURT OF DELHI [ARUN MISHRA, J.]

    direction to this effect can be issued by the Court. The Court          A
    further held that even the policy decision incorporated in the Rules/
    Regulations not providing for rechecking/verification/re-evaluation
    cannot be challenged unless there are grounds to show that the
    policy itself is in violation of some statutory provision. The Court
    held as under: (SCC pp. 39-40 & 42, paras 14 & 16)
                                                                            B
       “14. ...It is exclusively within the province of the legislature
       and its delegate to determine, as a matter of policy, how the
       provisions of the Statute can best be implemented and what
       measures, substantive as well as procedural would have to be
       incorporated in the rules or regulations for the efficacious
       achievement of the objects and purposes of the Act...                C

       X xxxx
       16. ...The Court cannot sit in judgment over the wisdom of the
       policy evolved by the legislature and the subordinate regulation-
       making body. It may be a wise policy which will fully effectuate     D
       the purpose of the enactment or it may be lacking in
       effectiveness and hence calling for revision and improvement.
       But any draw-backs in the policy incorporated in a rule or
       regulation will not render it ultra vires and the Court cannot
       strike it down on the ground that in its opinion, it is not a wise
       or prudent policy, but is even a foolish one, and that it will not   E
       really serve to effectuate the purposes of the Act. “
    25. This view has been approved and relied upon and re-iterated
    by this Court in Pramod Kumar Srivastava v. Bihar Public Service
    Commission, (2004) 6 SCC 714 observing as under: (SCC pp.
    717-18, para 7)                                                         F
       “7. ….Under the relevant rules of the Commission, there is no
       provision wherein a candidate may be entitled to ask for re-
       evaluation of his answer-book. There is a provision for scrutiny
       only wherein the answer-books are seen for the purpose of
       checking whether all the answers given by a candidate have           G
       been examined and whether there has been any mistake in the
       totaling of marks of each question and noting them correctly
       on the first cover page of the answer-book. There is no dispute
       that after scrutiny no mistake was found in the marks awarded
       to the appellant in the General Science paper. In the absence
                                                                            H
364             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A               of any provision for re-evaluation of answer-books in the
                relevant rules, no candidate in an examination has got any right
                whatsoever to claim or ask for re-evaluation of his marks.”
                                                             (emphasis added)
            A similar view has been reiterated in Dr. Muneeb-Ul-Rehman
B           Haroon (Dr.) v. Govt. of J&K State (1984)4 SCC 24; Board of
            Secondary Education v. PravasRanjan Panda (2004) 13 SCC 383;
            Board of Secondary Education v. D. Suvankar (2007) 1 SCC 603;
            W.B. Council of Higher Secondary Education v. Ayan Das
            (2007)8 SCC242; and Sahiti v. Dr. N.T.R. University of Health
            Sciences (2009) 1 SCC 599.
C
            26. Thus, the law on the subject emerges to the effect that in
            absence of any provision under the Statute or Statutory Rules/
            Regulations, the Court should not generally direct revaluation.”
             In Mukesh Thakur (supra) it was laid down that in the absence
D     of provision for re-evaluation it cannot be resorted to and the observations
      which were made in the case of CPIL v. Registrar General of High
      Court of Delhi (supra), the decision was rendered in 2016 after the
      examination had already been held, thus the provision for re-evaluation
      could not have been introduced after the examination had been held. In
      our opinion, for examination in question in the absence of provision for
E     revaluation when the examination was held, it could not be resorted to.
             16. Coming to the question of prescribing the minimum pass marks
      in the viva voce examination, in our opinion it is rightly observed by this
      Court in K.H. Siraj v. High Court of Kerala & Ors. (2006) 6 SCC
      395, that interview is the best method to assess the ability of the candidate
F     and to judge the capacity and minimum marks can also be prescribed. In
      case a candidate fails in an interview it cannot be said that he is suitable
      for the job of a Munsif Magistrate. This Court observed:
            “54. In our opinion, the interview is the best mode of assessing
            the suitability of a candidate for a particular position. While the
G           written examination will testify the candidates’ academic
            knowledge, the oral test alone can bring out or disclose his overall
            intellectual and personal qualities like alertness, resourcefulness,
            dependability, capacity for discussion, ability to take decisions,
            qualities of leadership etc. which are also essential for a judicial
            officer.
H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                              365
        COURT OF DELHI [ARUN MISHRA, J.]

    55. We may usefully refer to a decision of this Court in Lila Dhar         A
    v. State of Rajasthan (1981) 4 SCC 159 in which this Court
    observed as under:
           “The object of any process of selection for entry into a
           public service is to secure the best and the most suitable
           person for the job, avoiding patronage and favouritism.             B
           Selection based on merit tested impartially and objectively,
           is the essential foundation of any useful and efficient public
           service. So, open competitive examination has come to be
           accepted almost universally as the gateway to public
           services.
                                                                               C
           ‘The ideal in recruitment is to do away with unfairness.’
           (SCC pp. 162-63, para 4)
                                        ***
           ‘A system of recruitment almost totally dependent on
           assessment of a person’s academic knowledge and skills,             D
           as distinct from ability to deal with pressing problems of
           economic and social development, with people, and with
           novel situations cannot serve the needs of today, much less
           of tomorrow...We venture to suggest that out recruitment
           procedures should be such that we can select candidates             E
           who cannot only assimilate knowledge and sift material to
           understand the ramifications of a situation or a problem but
           have the potential to develop an original or innovative
           approach to the solution of problems.’
    It is now well recognised that while a written examination assesses        F
    a candidate’s knowledge and intellectual ability, an interview test
    is valuable to assess a candidate’s overall intellectual and personal
    qualities. While a written examination has certain distinct advantage
    over the interview-test there are yet no written tests which can
    evaluate a candidate’s initiative, alertness, resourcefulness,
    dependableness, cooperativeness, capacity for clear and logical            G
    presentation, effectiveness in discussion, effectiveness in meeting
    and dealing with others, adaptability, judgment, ability to make
    decision, ability to lead, intellectual and moral integrity. (SCC p.163,
    para5)
                                                                               H
366   SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     ***
      ‘While we do feel that the marks allotted for interview are on
      the high side and it may be appropriate for the Government to
      re-examine the question, we are unable to uphold the contention
      that it was not within the power of the Government to provide
B     such high marks for interview or that there was any arbitrary
      exercise of power. (SCC p.166, para 9)”
      56. In Mohan Kumar Singhania and Ors. v. Union of India and
      Ors. : AIR 1992 SC 1, S. Ratnavel Pandian, J. speaking for the
      Bench, observed as under: (SCC p.608, paras 18-21)
C        “18. Hermar Finer in his textbook under the caption The
         Theory and Practice of Modern government states:
            ‘The problem of selection for character is still the pons
         asinorum of recruitment to the public services everywhere.
         The British Civil Service experiments with the interview.’
D
         19. The purpose of viva voce test for the ICS Examination
         in 1935 could be best understood from the following extract
         of the Civil Service Commission’s pamphlet:
           ‘Viva Voce - the examination will be in matters of general
         interest: it is intended to test the candidate’s alertness,
E
         intelligence, and intellectual outlook. The candidate will be
         accorded an opportunity of furnishing the record of his life
         and education.’
         20. It is apposite, in this connection, to have reference to an
         excerpt from the United Nations Handbook on Civil
F
         Service Laws and Practice, which reads thus:
            “...the written papers permit an assessment of culture
         and intellectual competence. This interview permits an
         assessment of qualities of character which written papers
         ignore; it attempts to assess the man himself and not his
G        intellectual abilities.”
         21. This Court in Lila Dhar v. State of Rajasthan (1981) 4
         SCC 159 while expressing the view about the importance
         and significance of the two tests, namely, the written and
         interview has observed thus: (SCC p.164, para 6)
H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                                 367
        COURT OF DELHI [ARUN MISHRA, J.]

                 ‘...the written examination assess the man’s intellect           A
             and the interview test the man himself and ‘the twain shall
             meet’ for a proper selection.’ “
             57. The qualities which a Judicial Officer would possess
             are delineated by this Court in Delhi Bar Association v.
             Union of India (2002) 10 SCC 159. A Judicial Officer                 B
             must, apart from academic knowledge, have the capacity
             to communicate his thoughts, he must be tactful, he must
             be diplomatic, he must have a sense of humour, he must
             have the ability to defuse situations, to control the examination
             of witnesses and also lengthy irrelevant arguments and the
             like. Existence of such capacities can be brought out only           C
             in an oral interview. It is imperative that only persons with
             a minimum of such capacities should be selected for the
             judiciary as otherwise, the standards would get diluted and
             substandard stuff may be getting into the judiciary.
             Acceptance of the contention of the appellants/petitioners           D
             can even lead to a postulate that a candidate who scores
             high in the written examination but is totally inadequate for
             the job as evident from the oral interview and gets 0 marks
             may still find it a place in the judiciary. It will spell disaster
             to the standards to be maintained by the subordinate
             judiciary. It is, therefore, the High Court has set a benchmark      E
             for the oral interview, a benchmark which is actually low
             as it requires 30% for a pass. The total marks for the
             interview are only 50 out of a total of 450. The prescription
             is, therefore, kept to the bare minimum and if a candidate
             fails to secure even this bare minimum, it cannot be                 F
             postulated that he is suitable for the job of Munsif Magistrate,
             as assessed by five experienced Judges of the High Court.”
       17. In our considered opinion, it is desirable to have the interview
and it is necessary to prescribe minimum passing marks for the same
when the appointment in the higher judiciary to the post of District Judge        G
is involved. The interview is the best method of judging the performance,
overall personality and the actual working knowledge and capacity to
perform otherwise the standard of judiciary is likely to be compromised.
A written examination only tests academic knowledge, which is some
time, gained without possessing overall qualities, practical experience of
                                                                                  H
368            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     practice and law. In written exam, even the person with no caliber who
      takes decision by cramming may obtain better marks. When the Judges
      of the High Court too are appointed by adjudging the performance and
      intellect, an interview would be indispensable for judicial post. As
      ultimately, they also come to adorn the chair of a Judge and Judges of
      subordinate and higher judiciary to deliver justice to masses, the criteria
B
      of experience of practice for direct recruitment of 7 years whether
      actually gained can be adjudged only by interview, communicating skills
      and by elucidation of certain aspects which would not be possible by
      written exam alone. In Siraj (supra), it was emphasized that interview
      is the main fulcrum for judging the suitability of the candidate for
C     appointment as District Judge in the higher judiciary. In our opinion that
      is absolutely necessary. When we consider past practice earlier when
      the written examination was not prescribed, the High Court used to select
      the candidates for higher judiciary only by the method of interview. Now
      additional safeguards of written examination have been added. The
      importance of interview for the post of the higher judiciary has increased
D
      than ever before it is absolutely necessary to weed out unworthy elements/
      crammers and in our considered opinion it is not only appropriate but
      also absolutely necessary to prescribe the minimum pass marks so as to
      weed out unworthy element so as to segregate grain from the chaff.
      There is a vast difference between having the experience that is required
E     for a Judge that cannot solely be adjudged on the basis of written
      performance, and for which overall personality, intelligence test is
      absolutely necessary. Without that it would not be appropriate to make
      appointments in judiciary. Thus in our opinion the prescription of minimum
      45% marks for reserved category candidates could not be said to be
      uncalled for. Merely by the fact that some more posts were advertised
F
      and they are lying vacant, it could not have been a ground to relax the
      minimum marks for interview after the interview has already been held.
      It would not have been appropriate to do so and the High Court has
      objected to relaxation of minimum passing marks in viva voce examination
      in its reply and as the power to relax is to be exercised by the High Court
G     and since it has opposed such a prayer on reasonable ground and the
      institutional objective behind such prescription, we are not inclined to
      direct the High Court to relax the minimum marks.
             18. It was urged that out of 64 candidates, only one has failed in
      the interview. That, in fact, does not show the prejudice but is rather
H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                            369
        COURT OF DELHI [ARUN MISHRA, J.]

indicative of the fact that the performance of the petitioner was such       A
that in spite of the Committee being most liberal, it did not find it
appropriate to award even the minimum passing marks to the said
candidate. In our opinion, the awarding of marks by the Committee could
not be said to be inappropriate. No malice has been attributed; as such
we find no scope for interference on the aforesaid ground. Reliance has
                                                                             B
been placed on Ajithkumar (supra) in which the Commission has relaxed
the criteria to call various reserved category candidates who secured
marks out of the cut off marks. This Court has observed that challenge
to the decision of the Service Commission to relax cut off marks with
respect to reserved category candidates could not succeed in the earlier
round of litigation. There was relaxation of cut off marks for reserved      C
category candidates in the preliminary examination not governed by rules.
In the instant case in the rules, the minimum cut off is prescribed. That
could not have been relaxed and moreover, relaxation is a matter of
policy and considering the overall circumstances, importance of interview,
the decision not to relax cannot be said to be unreasonable. The decision
                                                                             D
has no application.
       19. Even otherwise the petitioners have undertaken the exam with
the stipulation of minimum cut off marks in written and oral examination
and then having failed, they cannot turn round and are estopped to contend
to the contrary. This Court in K. Siraj (supra) has observed that when
the candidates participated in the interview with the knowledge that for     E
selection they have to clear the prescribed minimum pass marks, on
being unsuccessful in interview, could not turn around and challenge that
the prescription of minimum marks was improper. They are estopped to
contend it as observed in K.H. Siraj (supra) thus:
      “72. The appellants/petitioners, in any event, are not entitled to     F
      any relief under Article 226 of the Constitution of India for more
      reasons than one. They had participated in the written test and in
      the oral test without raising any objection. They knew well from
      the High Court’s Notification that a minimum marks had to be
      secured both at the written test and in the oral test. They were       G
      also aware of the High Court decision on the judicial side reported
      in Remany v. High Court of Kerala 1996 (2) KLT 439. This case
      deals with prescription of minimum qualifying marks of 30% for
      viva voce test. C.S. Rajan, J., in the above judgment, observed as
      under: (KLT pp.441-42, para 5)
                                                                             H
370      SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     “....On the basis of the aggregate marks in both the tests, the
      selection has to be made. In I.C.A.R’s case, also the relevant
      rules did not enable the selection Board to prescribe minimum
      qualifying marks to be obtained by the candidate at the viva voce
      test. In the Delhi Judicial Service’s case (1985) 3 SCC 721 also
      Umesh Chandra (1985) 3 SCC 721, the rules did not empower
B
      the committee to exclude candidates securing less than 600 marks
      in the aggregate. Therefore, in all these cases, the Supreme Court
      came to the conclusion that prescription of separate minimum
      marks for viva voce test is bad in law because, under the rules, no
      minimum qualifying marks were prescribed.
C     The High Court also relied on P.K. Ramachandra Iyer’s case
      (1984) 2 SCC 141 and Umesh Chandra’s case (Supra).
      73. The appellants/petitioners having participated in the interview
      in this background, it is not open to the appellants/petitioners to
      turn round thereafter when they failed at the interview and contend
D     that the provision of a minimum mark for the interview was not
      proper. It was so held by this Court in paragraph 9 of Madan Lal
      and Ors. v. State of J & K [1995] 3 SCC 486 as under: (SCC
      p.493)
         “9. Before dealing with this contention, we must keep in view
E        the salient fact that the petitioners as well as the contesting
         successful candidates being respondents concerned herein,
         were all found eligible in the light of marks obtained in the
         written test, to be eligible to be called for oral interview. Up to
         this stage, there is no dispute between the parties. The
F        Petitioners also appeared at the oral interview conducted by
         the Members concerned of the Commission who interviewed
         the petitions as well as the contesting respondents concerned.
         Thus the petitioners took a chance to get themselves selected
         at the said oral interview. Only because they did not find
         themselves to have emerged successful as a result of their
G        combined performance both at written test and oral interview,
         they have filed this petition. It is now well settled that if a
         candidate takes a calculated chance and appears at the
         interview, then, only because the result of the interview is not
         palatable to him, he cannot turn round and subsequently contend
H        that the process of interview was unfair or the Selection
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                                 371
        COURT OF DELHI [ARUN MISHRA, J.]

          Committee was not properly constituted. In the case of Om               A
          Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC
          285, it has been clearly laid down by a Bench of three learned
          Judges of this Court that when the petitioner appeared at the
          examination without protect and when he found that he would
          not succeed in examination he filed a petition challenging the
                                                                                  B
          said examination, the High Court should not have granted any
          relief to such a petitioner.”
       74. Therefore, the writ petition filed by the appellants/petitioners
       should be dismissed on the ground of estoppel is correct in view
       of the above ruling of this Court. The decision of the High Court
       holding to the contrary is in per incuriam without reference to the        C
       aforesaid decisions.”
      20. With regard to question as to rounding off of the marks, in our
opinion, when a particular aggregate is prescribed for eligibility, a person
must meet the criteria without relaxation. It is not permissible to enhance
the marks by rounding off method to make up the minimum aggregate.                D

       21. This Court, in The Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore vs. G. Hemlatha and Ors., (2012) 8 SCC
568, held as impermissible the rounding-off of eligibility criteria in relation
to qualifying examination for admission to the PG Course in MSc
(Nursing). Relying upon the decision rendered in Orissa Public Service            E
Commission & Anr. vs. Rupashree Chowdhary and Anr., (2011) 8
SCC 108, this Court observed:
             “8. In Orissa Public Service Commission and Anr. v.
       Rupashree Chowdhary and Anr. (2011) 8 SCC 108 this Court in
       somewhat similar fact situation considered whether the eligibility         F
       criteria could be relaxed by the method of rounding-off. The Orissa
       Public Service Commission published an advertisement inviting
       applications from suitable candidates for the Orissa Judicial
       Service Examination, 2009 for direct recruitment to fill-up 77 posts
       of Civil Judges (JD). Pursuant to the advertisement, the first             G
       Respondent therein applied for the said post. She took the
       preliminary written examination. She was successful in the said
       examination. She, then, took the main written examination. The
       list of successful candidates, who were eligible for interview, was
       published in which the first Respondent’s name was not there.
                                                                                  H
372      SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A     She received the mark sheet. She realized that she had secured
      337 marks out of 750 i.e. 44.93% of marks in the aggregate and
      more than 33% of marks in each subject.
          9. As per Rule 24 of the Orissa Superior Judicial Service and
      Orissa Judicial Service Rules, 2007 (for short “the Orissa Rules”),
B     the candidates who have secured not less than 45% of the marks
      in the aggregate and not less than a minimum of 33% of marks in
      each paper in the written examination should be called for viva
      voce test. Since the first Respondent therein had secured 44.93%
      marks in aggregate she was not called for interview/viva voce.
      The first Respondent approached the Orissa High Court. The
C     High Court allowed the writ petition. The appeal from the said
      order was carried to this Court.
        10. After considering the Orissa Rules, this Court in Rupashree
      Chowdhary case (2011) 8 SCC 108 held that Rule 24 thereof
      made it clear that
D
         “in order to qualify in the written examination a candidate has
         to obtain a minimum of 33% marks in each of the papers and
         not less than 45% marks in the aggregate in all the written
         papers in the main examination.” (SCC p. 111, para 10)

E        This Court observed that when emphasis is given in the rule
      itself to the minimum marks to be obtained, there can be no
      relaxation or rounding-off. It was observed that no power was
      provided in the statute/rules permitting any such rounding-off or
      giving grace marks. It was clarified that: (SCC p. 112, para 10)

F        “10…. The [Orissa] Rules are statutory in nature and no dilution
         or amendment to such rules is permissible or possible by adding
         some words to the said statutory rules for giving the benefit of
         rounding-off or relaxation.”
         11. In our opinion, the ratio of this judgment is clearly applicable
      to the facts of this case. Judgment of the Full Bench of Allahabad
G
      High Court in Vani Pati Tripathi v. Director General, Medical
      Education and Training and Ors. AIR 2003 All 164 and judgment
      of the Full Bench of Punjab and Haryana High Court in Kuldip
      Singh, Legal Assistant, Punjab Financial Corporation v. The
      State of Punjab and Ors. (1997) 117 PLR 1, were cited before
H
TANIYA MALIK v. THE REGISTRAR GENERAL OF THE HIGH                           373
        COURT OF DELHI [ARUN MISHRA, J.]

      us because they take the same view. However, in view of the           A
      authoritative pronouncement of this Court in Orissa Public Service
      Commission (supra), it is not necessary for us to discuss the said
      decisions.
          12. No provision of any statute or any rules framed thereunder
      has been shown to us, which permits rounding-off of eligibility       B
      criteria prescribed for the qualifying examination for admission to
      the PG course in M.SC (Nursing). When eligibility criteria is
      prescribed in a qualifying examination, it must be strictly adhered
      to. Any dilution or tampering with it will work injustice on other
      candidates. The Division Bench of the High Court erred in holding
      that learned Single Judge was right in rounding-off of 54.71% to      C
      55% so as to make Respondent 1 eligible for admission to PG
      course. Such rounding-off is impermissible.”
       22. Thus the principle of rounding off method could not be applied
in view of requirement to obtain minimum aggregate marks to be called
for interview in the instant case.                                          D

       23. Coming to question whether minimum cut off marks in the
written examination be relaxed from 40% to 33% and whether we should
interfere on the ground that as a person who has obtained the highest
marks, could not clear one of the papers by narrow margin of one mark.
It was also urged that the person having the highest marks has not been     E
called for interview and as he could not clear the minimum percentage
in one of the written paper and persons having lesser marks in aggregate
have been called for interview. In our opinion minimum-passing marks
in each of the paper could have been prescribed and that is absolutely
necessary so as to adjudge the academic knowledge in various subjects.      F
Merely by scoring highest marks in general knowledge and language
paper is not going to help. Minimum knowledge in other subjects, civil
and criminal law was also requisite and that is true for vice versa too,
and that is why minimum passing marks had been prescribed and fixation
of 40% was quite reasonable and proper and it would be not proper for
this Court to interfere in the same. We find no fault in prescribing the    G
minimum passing marks for written papers. It may happen in any
examination that a person who is having better aggregate may not fair
well in one of the papers and may be declared ‘failed’. That cannot be a
ground to order relaxation or to doubt the correctness of the evaluation
                                                                            H
374                SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     process. When we were shown the marks of a candidate who secured
      highest marks, it became apparent that the performance of the candidate
      in paper general knowledge and language was far better as compared to
      the performance in civil and criminal papers. Thus when a single examiner,
      has done valuation, same yardstick has been applied to all the candidates.
      We find no ground to interfere on the various grounds urged by the
B
      petitioners.
             24. We place on record as pointed out by learned counsel on
      behalf of the High Court of Delhi that suggestions made by this Court in
      the decision rendered in CPIL (supra) have been carried out for subsequent
      examinations for 2016.
C
             25. Resultantly, we find no ground to make interference. The writ
      petitions being devoid of merits are hereby dismissed. No costs.


      Ankit Gyan                                            Writ Petitions dismissed.
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