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Judgment
D.S. Mahra, Member J
The respondents/Service Selection Board advertised 1540 posts of Junior Assistant vide various advertisement notifications i.e. No.04 of 2020 dated 16.12.2020, 05 of 2020 dated 24.12.2020, 06 of 2020 dated 29.12.2020, 07 of 2020 dated 31.12.2020, 01 of 2021 dated 3.2.2021, 02 of 2021 dated 26.3.2021 and 03 of 2021 dated 4.6.2021. In pursuance of the notifications, the applicants applied for these posts. In the scheme of the examination it was provided that the criteria of selection will be 20 points for Skill Test and 80 points for Written Examination. It was made clear in the advertisement itself that the result will be subject to adopting the Normalization process of Equi-Percentile Equating Method. It was further made clear by the respondents in subsequent notices dated 27.10.2021 and 19.1.2022 that the final select list will be prepared by applying normalization method. The Skill Test for 20 points was conducted first and a list of those who qualified the Skill Test was issued on 15.1.2022. The written test was conducted from 20.1.2022 to 24.1.2022 and a tentative merit list was issued on 19.3.2022 wherein names of some of the applicants also figure.
Aggrieved by entire process adopted by the Respondents, the applicants have filed the present OA before this Tribunal with the following prayer :
i) An order/direction, the result prepared by use of Normalization process call Equi-Percentile Equating Method, may be quashed and declared null and void;
ii) An order/ direction, the result be prepared and consequent selection be made on the actual marks (Raw Score) secured by the candidates.
iii) Any other relief that this Hon’ble Tribunal may deem appropriate in facts and circumstances of the case may also be passed.
The applicants have basically challenged the decision of the respondents i.e. applying the Normalization process called Equi-percentile Equating Method in the finalization of the selection. It is been submitted by the applicants that the respondents decided to adopt and apply the Normalization method in finalization of the selection process suddenly just a day before the written examination i.e. 19.1.2022, as a result of which the applicants could not challenge the same before an appropriate forum. Learned counsel for the applicants further submitted that the said procedure is unscientific, non-transparent, arbitrary and there is a wide scope of manipulation in the final selection. He further submitted that the respondents had followed dual method in the process of selection. 20 points are marked for the Skill Test and 80 points for the written examination. The Normalization procedure is adopted only for the written examination and it has not been applied to the Skill Test. Due to the adoption of the Normalization procedure, the meritorious candidates have been put to a disadvantageous position especially when the raw marks are not being disclosed by the respondents. He further submitted that the Normalization procedure is being adopted nationwide for competitive examinations where a large number of candidates appear whereas in the present examination there were a very small group of candidates and therefore the said examination should have been conducted in one shift only.
The respondents have filed their counter affidavit contending that it was made clear in the advertisement notification itself under the column “scheme of examination” that if required, marks scored by the candidates in the written test will be normalized, to determine the final merit list. He further submitted that information with regard to applying the normalization method was given to all the candidates vide notices dated 27.10.2021 and 19.1.2022. Therefore, the applicants cannot content that this method was applied suddenly without informing them. Moreover, the applicants were well aware of the fact that the Normalization process will be followed in the final result. Despite this, they did not challenge the same and did not take any objection at the relevant time. Learned counsel for the respondents further submitted that the applicants participated in the selection process and now at this belated stage when the final selection list is to be issued, the applicants have challenged the said procedure, which is not permitted under the law. Since the examination was to be held in multiple shifts, it was imperative to follow the Normalization procedure for finalizing the selection process. Normalization procedure is used by all agencies conducting competitive examinations nationwide and this is a scientific and statistical procedure designed by experts. Therefore, the OA of the applicants deserves to be dismissed with costs.
We have heard learned counsels for both the parties and perused the material available on record.
On the facts and circumstances and on the contentions raised by the rival parties, the question for determination by this Tribunal is as follows :
“Whether the Normalization method/process called Equi-Percentile Equating Method adopted and applied by the respondents in finalizing the selection process is legally tenable/sustainable or not?”
It is not in dispute that vide various advertisement notifications the respondents advertised various posts to be filled up through a competitive examination. The applicants applied for the posts of Junior Assistants in various departments. In para 10 of scheme of the examination, it was made clear that the marks scored by the candidates in the written test will be normalised, if so required, to determine final merit and cut off marks :
(10) Scheme of Examination :
(I) The Examination will consist of Objective Type, Multiple choice questions only. The questions will be set in English only.
(II) There will be negative marking of 0.25 marks for each wrong answer.
(III) Tentative Answer Keys, in due course after the Examination, will be placed on the website of the Board (www.jkssb,nic,in). Any representation regarding Answer Keys received within the time limit fixed by the Board at the time of uploading of the Answer Keys, will be scrutinized and the decision of the Board in this regard will be final. No representation regarding Answer Keys shall b entertained, afterwards.
(IV) Marks scored by candidates in written test will be normalized, if required, to determine final merit and cut off marks.
It was also made clear that only the marks scored in the written test will be normalized. 20 points marks will not be normalized since it was a Skill Test of an individual. It was further made clear that only those who pass the Skill Test, would be eligible to sit for the Written Test.
The respondents have explained how and in what manner the Normalization process will be applied to the examination which is as follows:
(A)
GOVERNMENT OF JAMMU AND KASHMIR
JAMMU AND KASHMIR SERVICS SELECTION BOARD
Hema Complex, Sector-3, ChanniHimmat, Jammu/Zamzam Complex Rambagh,
Srinagar
https://www.jkssb.nic.in/
IMPORTANT NOTICE
The Jammu and Kashmir Services Selection Board (JKSSB) has decided to normalize the scores of candidates for the examinations which are conducted in multi-shifts to take into account any variation in the difficulty levels of the question papers across different shifts. The normalization is done based on the fundamental assumption that “I all multi shift examinations, the distribution of abilities of candidates is the same across all the shifts”. This assumption is justified since the number of candidates appearing in multiple shifts in the examinations conducted by the Board is large and the procedure for allocation of examination shift to candidates is random. The following formula will be used by the Board to calculate final score of candidates in the multi-shift examinations :
Where:
Mij= Normalized marks of jth candidate in the ith shift.
Mgt= is the average marks of the top 0.1% of the candidates considering all shifts (number of candidates will be rounded-up).
Mgq= is the sum of mean and standard deviation marks of the candidates in the examination considering all shifts.
Mti = is the average marks of the top 0.1% of the candidates in the ith shift (number of candidates will be rounded-up).
Miq = is the sum of mean marks and standard deviation of the ith shift.
Mij = is the actual marks obtained by the j th candidate in ith shift.
Mgmq = is the sum of mean marks of candidates in the shift having maximum mean and standard deviation of marks of candidates in the examination considering all shifts.
Calculation of marks will be done up to 5 decimal places.
(B)
PROCEDURE FOR COMPLILATION OF EXAMINATIN SCORES FOR MULTI
SESSION/SLOT PAPERS
(Normalization procedure based on PERCENTILE SCORE)
INTRODUCTION :
When an examination has multiple question papers (in the same subject matter), it is critical that they be developed to be parallel to one another on the given syllabus. Two or more question papers of an exam are considered parallel when they have been developed to be as similar to one another as possible in terms of the test4 specifications and statistical criteria. High stakes exam programs may have multiple question papers in use at every test administration, when the examination cannot be conducted in a single batch. However, using multiple question papers means that the multiple question papers developed should b e similar to each other.
The National Testing Agency (Govt. of India), which conducts examinations in multiple slots for various clients has recommended a procedure called Normalization using the Percentile Method, to overcome this issue and to see that candidates are not disadvantaged.
Excerpts from NTA document are referenced below
The candidates will be given different sets of questions per session and it is quite possible that in spite of all efforts of maintaining equivalence among various questions papers, the difficulty level of these question papers administered in different sessions may not be exactly the same. Some of the candidates may end up attempting a relatively tougher set of questions when compared to other sets. The candidates who attempt the comparatively tougher examination are likely to get lower marks as compared to those who attempt the easier one. In order to overcome such a situation, “Normalization Procedure based on Percentile Score” will be used for ensuring that candidates are neither benefitted nor disadvantaged due to the difficulty level of the examination. With the objective of 3nsuring that a candidate’s true merit is identified, and that a level playing field is created in the above context, the Normalization Procedure, set out below shall be adopted, for compiling the NTA scores for multi session papers.
The process of Normalization is an established practice for comparing candidate scors across multi session papers and is similar to those being adopted in other large educational selection tests conducted in India.
Percentile Scores : Percentile scores are scores based oan the relative performance of all those who apper for the examination. Basically the marks obtained are t4ransformed into a scale ranging from 100 to 0 for each session of examinees. The percentile Score indicats the percentage of candidates that have scored EQUAL TO OR BELOW (same or lower raw scores) in that particular Percentile in that examination. Therefore the topper (hghest score) of ach session will get the same Percentile of 100 which is desirable. The marks obtained in between the highest and lowest scores are also converted to appropriate Percentiles.
The Percentile score of a Candidate is calculated as follows :
100 X Number of candidates appared in the ‘Session’ with raw score EQUAL TO OR LE3SS than the candidate/Total number of the candidates appeared in the ‘Session’.
Note : Percentile score is not the same as percentage of marks obtained.
The Percentile score will be the Normalized Score for the particular examination (instead of the raw marks of the candidate) and this percentile score shall be used for preparation of the merit lists. Therefore, candidate scores will be notified in Percentile scores only.
It was again clearly informed to all the candidates vide notice dated 27.10.2021 and subsequently on 19.1.2022 that final selection will be made by applying the Normalization method.
In view of the above, it is clear that the respondents did not resort to the Normalization method suddenly but it was applied after due notice to the applicants which is apparent from the aforementioned notices as well as from the scheme of the examination. The applicants were well aware of the fact that in the final selection and especially with regard to the written Examination, normalization method of Equi-percentile Equating method will be applied before issuing the Selection List. The contention of the applicants that this method was suddenly applied without any notice or information to the applicants, is against the available record, hence, cannot be accepted.
Since Normalization method is being used nationwide by all the recruiting agencies in conducting competitive examinations and has been designed by experts, the same cannot be treated as arbitrary and non-transparent. It is the recruitment agency which is the best judge to determine as to which procedure is to be followed and applied in a competitive examination. This Tribunal cannot go into the correctness of application of an established procedure by the recruiting agency as it is beyond the scope of judicial review. Which method would be most appropriate for conducting a particular competitive examination is a choice open to the recruiting agency unless it is an illegal method or if the recruiting agency lacks the jurisdiction to adopt the said procedure. One of the reasons to conduct the examination in different shifts may be that during that period the Covid-19 norms were in operation. Therefore the respondents took a decision to conduct the said competitive examination in different shifts to follow the Covid-19 protocol despite of the fact that the candidates for the said examination were in lesser number. Moreover it is for the respondents i.e. the recruiting agency to determine how and in which manner the competitive examination is to be conducted. There is no illegality in the exercise undertaken by the respondents in conducting the competitive examination in different shifts even though the numbers of candidates were lesser. Therefore, the contention of the applicants that the respondents should have conducted the examination in one shift and also should have taken into consideration the raw marks obtained by the candidates instead of adopting the Normalization method, is without any basis and hence, is rejected.
Hon’ble Supreme Court in the matter of State of Uttar Pradesh –vs-Atul Kumar Dwivedi vide order dated 7.1.2022 has approved the application of Normalization method in preparing the final select list. While affirming the application of normalization method by the recruiting agencies, Hon’ble Supreme Court has held as follows :
“In conclusion, the exercise undertaken by the Board in adopting the process of normalization at the initial stage, that is to say, at the level of Rule 15(b) of Recruitment Rules was quite consistent with the requirements of law. The power exercised by the Board was well within its jurisdiction and as emphasized by the High Court there were no allegations of mala fides or absence of bona fides at any juncture of the process. One more facet of the matter is the note of caution expressed by this Court in paragraph 20 of its decision in Sunil Kumar & Ors. –vs-Bihar Public Service Commission & Ors. As observed by this Court the decisions made by the expert bodies, including the Public Service Commissions, should not be lightly interfered with, unless instances of arbitrary and mala fide exercise of power are made out.”
In an identical matter, the Hon’ble High Court of Telangana in the matter of Lubna Tabassum & Ors. –vs- State of Telengana & Anr. vide order dated 1.6.2021 has also affirmed the application of normalization method by the recruiting agencies in finalising the select list. While affirming the normalization process, the Hon’ble High Court has held as follows :
“13. The recruitment notification dated 13.5.2018 specifically provides for the normalization method. This position was to the knowledge of the appellants/petitioners when they had applied for recruitment. Though it is not being explained with mathematical precision as to how the normalization principle has been worked out, it has been stated by the respondents authorities that the Railway Recruitment Board, IITs and several other organizations have been following this method. In our opinion, the recruiting agency is the best judge to decide the efficiency of the candidates whom it seeks to recruit and the procedure of making the selection. The normalization method has been applied uniformly to all the candidates. The appellants/petitioners have not been able to demonstrate as to how this normalization method has worked out to their disadvantage and has caused a hostile discrimination against women candidates. There is no allegation of mala fides , arbitrariness or of favouring any vested so as to eliminate eligible women candidates.
It is also noteworthy that the respondent No.2 had declared in the notification itself that they propose to adopt the normalization procedure. So, this has not come as a surprise to the appellants/petitioners. If in doubt, there was ample opportunity for them to have approached the respondents for seeking clarification in respect of the normalization procedure proposed to be followed. However, they did not do so. Instead, they participated in the selection process, waited for the results to be declared and on finding that they had not been selected, used the RTI route to gather information. Only thereafter, did they approach the court for relief. By then, the list of the successful candidates had already been drawn by the respondents. This itself was sufficient reason for the court not to entertain the writ petition.”
The Principal Bench of Central Administrative Tribunal, New Delhi in the matter of Sushil Gaur –vs- Staff Selection Commission vide order dated 7.4.2022 has also approved and affirmed the normalization method applied by the recruiting agency and dismissed the OA as follows :
“From the pleadings on record, it is apparent that a large number of candidates appeared in the said examination conducted by the Commission in multi-shifts and the procedure for allocation of examination shift to the candidates was random. In view of the fact that in lakhs, including the applicants, candidates applied for CGLE-2019 and more than one lakh candidates appeared in Tier1. The advertisement notice and the notice dated 7.2.2019 have been known to the applicants and they have not only voluntarily participated in the selection process but pursuant to the said notice, the normalization has been applied by the respondents uniformly and the applicants had been successful in Tier 1. However, when the same formula was applied, the final scores of the applicants have got done substantially. Merely for this reason, the action of the Commission cannot be treated as arbitrary or illegal, more so, in view of the law laid down by the Hon'ble High Court (s) and Hon'ble Supreme Court, referred to hereinabove. Accordingly, we are of the considered view that the matter does not require interference by this Tribunal.”
In the present OA, the applicants have challenged the decision of the respondents in applying the Normalization method in the final selection. Although the applicants were informed well in advance in the advertisement itself, subsequently vide notices dated 27.10.2021 and 19.1.2022, they did not opt to challenge the same. Rather, they participated in the process of selection and waited for the result. It was only after the tentative merit list was issued by the respondents, the applicants challenged the procedure itself. This conduct of the applicants cannot be appreciated. If the applicants were aggrieved by the procedure of normalization to be adopted by the respondents, they should have challenged the said notices as well as the decision of the respondents to go for the normalization method before appearing in the exam or at least before the tentative Selection List was issued. Hon’ble Apex Court as well as various High Courts have refused to entertain petitions which have been filed by candidates who after participating in the selection process. Moreover, the respondents are yet to issue the final Select List of the successful candidates. As of today only a tentative Select List has been issued wherein names of some of the applicants are also figuring. Even the applicants are not sure whether their names will eventually find a place in the final selection list or not.
Hon’ble Supreme Court in the matter of Ashok Kumar –vs- State of Bihar [2017 (4) SCC 357] while dealing with the same issue has held as under :
“12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that : (SCC p. 107, para 18)
It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same,. (See also Munindra Kumar V. Rajiv Govil (1991) 3 SCC 368 and Reshmi Mishra v. M.P.Public Service Commission (2006) 12 SCC 724)."
The same view was reiterated in Amlan Jyoti Borroah v. State of Assam (2009) 3 SCC 227 where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 the principle was reiterated in the following observations: (SCC p.584 para 15)
(16) We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been ear marked for vive voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even' dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in MadanLal v. State of J. and K, (1995) 3 SCC. 486, Marripati Nagaraja v. Government of Andhra Pradesh, (2007) 11 SCC 522, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah V. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515.”
In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, candidates who had participated in the selection process were aware that they weré required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction, this was held to be impermissible.
In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that (SCC p.318, para 18)
"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
In Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai V, Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that : (SCC p.500, para 17)
"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time.
Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.”
In view of the above, we hold that the respondents were well within their right and jurisdiction while adopting and applying the Normalization process called Equi-percentile Equating method in finalizing the selection process since it was made clear in the scheme of the examination as well as by subsequent notices that this method will be used in the final selection of the candidates.
We, therefore, find this OA to be devoid of merit and it is accordingly dismissed. All the MAs stand disposed of. The interim order stands vacated. Respondents are at liberty to proceed further to complete the process of selection and appointment of the candidates as per advertisement notifications and the scheme of examination.
No order as to costs.