Supreme Court of India
Sujasha Mukherji vs The Hon’Ble High Court Of … on 19 February, 2015Author: V Sen

Bench: Vikramajit Sen, C. Nagappan





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




THR. REGISTRAR & ORS. Respondent(s)

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

For Petitioner(s)

Mr. Partha Sil,Adv.

For Respondent(s)

Mr. G. S. Chatterjee,Adv.

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

Leave granted.

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


( Signed Reportable Judgment is placed on the file)




[Arising out of S.L.P.(C) No.27582 of 2014]






Leave granted.

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

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

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

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

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

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

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

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

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

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

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

12 There will be no orders as to costs.


New Delhi;
February 19, 2015.


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