All Railway Rec. Board & ANR. Vs. K. Shyam Kumar & Ors.  INSC 359
(6 May 2010)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.
5675-5677 OF 2007 Chairman, All India Railway Rec. Board & Anr.
Appellant(s) Versus K. Shyam Kumar & Ors. Respondent(s)
We are in
these cases concerned with the validity of an order dated 04.06.2004 issued by
the Railway Board directing the Railway Recruitment Board (in short RRB) to
conduct a re-test for recruitment to Group-D posts, for those candidates who
had obtained minimum qualifying marks in the first written examination against
which large scale irregularities were noticed.
RRB vide its employment notification 1/2003 dated 13.06.2003 invited
applications for filling up Group `D' posts in the South 2 Central Railway
Zone, Secunderabad. In response to the notification 10,02,909 applications were
received by the RRB out of which 5,86,955 were found eligible and call letters were
sent to them for appearing in the written test held at various centres from
09.11.2003 to 21.11.2003. 3,22,223 candidates appeared for the written test,
out of which 2690 were selected to be called for Physical Efficiency Test (PET)
held on 03.02.2004 to 12.02.2004.
who qualified in the PET were called for verification of original certificates
from 04.04.2004 to 12.02.2004. During verification it was noticed that certain
malpractices had taken place in the written examination.
several complaints were also received by the RRB stating that certain
candidates had indulged in mass copying in some centers, including leakage of
question papers and impersonation of certain candidates. Since large scale
irregularities and malpractices were noticed it was decided to refer the matter
to the State Vigilance Department. The Vigilance Department conducted a
preliminary enquiry and submitted its report which was placed before the
Tribunal as well as before the High Court. Portions of the report extracted in
the judgment of the High Court prima facie revealed leakage of question papers,
mass copying and impersonation of candidates in the written test. Report also
indicated the possibility of involvement of some employees of Railways and
outsiders in the malpractices detected. Vigilance Department 3 also recommended
that the matter be referred to the Central Bureau of Investigation(CBI).
vigilance report and the various complaints were examined by the Railway Board
and the Board after discussing the matters with the RRB gave a direction vide
its letter dated 04.06.2004 to conduct a re-test for those candidates who had
obtained minimum qualifying marks in the written examination. The operative
portion of the order reads as follows:- "Board have gone into complete
details of the matter in view of the nature of malpractices / irregularities
involved, it has been decided that candidates obtaining minimum qualifying
marks may be subjected to another written examination by conducting the same in
good educational institution under tight control and supervision. This would
ensure the exclusion of those, who might have secured undue advantage in the
candidates may be called for PET on the basis of fresh merit list irrespective
of the fact whether some of them had appeared in the PET held on February
Railway Board also ordered that the cases of the candidates referred to GEQD
including those found guilty during the course of investigation by the
Vigilance or CBI be dealt with as per the extant rules at the time of
preparation of the final panel or later stage. RRB was directed to take steps
to conduct written examination and PET at the earliest. Railway 4 Board vide
its letter dated 1st September, 2004 directed the RRB to go ahead with the
examination scheduled on 26.09.2004.
Aggrieved by the order dated 04.06.04 certain candidates who had taken the
first written examination filed O.A. No.975/2004 before the Central
Administrative Tribunal, Hyderabad questioning the decision to conduct re-test
and also sought for a declaration that they are eligible to be appointed to
Group `D' posts in the South Central Railway Zone, Secunderabad pursuant to the
selection held in the month of February, 2004.
it was contended that even if the Board had the power to conduct second stage
written examination it should be confined only to 2690 candidates who had
qualified in the earlier written examination. The stand of the Board was that,
there was no illegality in ordering a re-test and para 18.1 of the selection
procedure empowered the Board to do so. Referring to paragraph 18.4 of the
employment notice No.1/2003 it was contended that merely qualifying in the
written and / or PET a candidate would not get any vested right for
appointment, especially since no final list or panel was published. Reference
was also made to the vigilance report and the report of the CBI which prima
facie revealed serious malpractices including mass copying, leakage of question
papers and impersonation in the written examination.
Tribunal found no irregularity in the decision taken by the Board in conducting
a re-test which was taken after referring to the vigilance report and other
relevant materials. Further it was noticed that the majority of the candidates
had not objected to that course and the applicants had approached the Tribunal
only at the eve of the re-test. Further it was also noticed the final select
list was never published, hence no legal rights of the applicants were
infringed. O.A. No.975/2004 was, therefore dismissed on 02.09.2004. O.A.
No.1008/2004 filed by few other candidates who had not taken the re-test
claiming identical reliefs was also dismissed by the Tribunal on 23.09.2004.
Aggrieved by the orders passed by the Tribunal in OA No.975 of 2004 and OA
No.1008 of 2004, Writ Petition No.17144 of 2004 and Writ Petition No.19354 of
2004 were preferred before the High Court of Andhra Pradesh. Before the High
Court it was contended that the decision to cancel the written test was
arbitrary, unreasonable and violative of Articles 14,16 and 21 of the
constitution of India. Further it was also pointed out that even if the
allegation of mass copying in certain centres was true, those candidates could
have been identified and there was no justification to order a re-test for 6
the other candidates, who had obtained minimum qualifying marks in the written
High Court found no reasons to cancel the first written examination and to
conduct a re-test for 2690 candidates who got minimum qualifying marks in the
written test which included 62 candidates against whom there were serious
allegations of impersonation. Referring to the vigilance report, the High Court
concluded that the controversy virtually boils down to identifying 62
candidates whose cases stood referred to CEQD/HYD for their certification and
hence the process of recruitment could be proceeded with for the rest of the
candidates. Further it was also held by the High Court that the materials available
to support the complaint of leakage of question papers were limited and had no
nexus to the large scale irregularities, noticed by the Railways. The High
Court also noticed that when the order dated 04.06.2004 was passed only the
vigilance report was available with the Board which was insufficient, to
support that order and the materials collected by the CBI subsequently could
not be relied upon to support that decision. Further it was also pointed out
that no copy of the vigilance report was also made available to the petitioners
and the decision taken to conduct a re-test was arbitrary, illegal and
High Court rejected the contentions that the order was politically motivated
and mala fide but applying Wednesbury's principle of unreasonableness the Court
held that the decision of the Board was illegal, arbitrary and unreasonable and
directed the Board to finalise the selection on the basis of the first written
test and to issue appointment orders to all the candidates except the 62
candidates against whom there were allegations of impersonation.
Aggrieved by the above judgment the RRB has come up with these appeals. Shri
D.K. Thakur, learned counsel appearing for the Board submitted that the High
Court has committed a grave error in sustaining the first written test
conducted by the Board in spite of large scale irregularities and illegalities
detected during the course of the enquiry by the Vigilance Department and
subsequently by the CBI. Learned counsel submitted in the facts and
circumstances of the case the best option available to the Railway Board was to
conduct a re-test for those candidates who had obtained minimum qualifying
marks in the first written test, since allegations of mass copying, leakage of
question papers and impersonation were noticed.
counsel also stated that the petitioners themselves had pointed out before the
Tribunal that if a re-test is conducted, the same be confined only to those
2690 candidates. Learned counsel also submitted that the High Court 8 has
wrongly applied the principle of Wednesbury unreasonableness. Learned counsel
placed reliance on the judgments of this Court in Union of India v.
Singh, (2003) 11 SCC 768; B. Ramanjini v. State of A.P. (2002) 5 SCC 533; Bihar
School Examination Board v. Subhas Chandra Sinha (1970) 1 SCC 648; State of
Maharashtra v. Prabhu (1994) 2 SCC 481; Madhyamic Shiksha Mandal, M.P. v.
Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236 in support of his various
Learned counsel appearing for the respondents tried to support the judgment of
the High Court contending that the best course open to the Railways was to
complete the recruitment process based on the first written test after ordering
inquiry with respect to the 62 candidates against whom there were allegations
of impersonation rather than conducting a re-test.
counsel also pointed out that the report of the Vigilance was not made
available to the respondents and, therefore, the action of the Railway Board
was illegal, arbitrary and violative of the principles of natural justice. In
support of his contentions learned counsel placed reliance on various decisions
of this Court viz., K. Vijayalakshmi vs. Union of India (1998) 4 SCC 37; Asha
Kaul vs. State of Jammu and Kashmir (1993) 2 SCC 573; N.T. Davin Katti vs.
Karnanataka Public Service Commission (1990) 3 SCC 157;
India vs. Rajesh P.U. (2003) 7 SCC 285; Munna Roy vs. Union 9 of India (2000) 9
SCC 283; Babita Prasad vs. State of Bihar (1993) Suppl.3 SCC 268; Onkar Lal
Bajaj vs. Union of India (2003) 2 SCC 673.
heard learned counsel on either side at length and we have also gone through
the extract of the vigilance report which appears in para 15 of the judgment of
the High Court. Report indicated that 100 to 200 candidates were suspected to
have obtained answers for the questions three hours before the examination
through some middleman who had arranged answers by accepting huge bribe. Apart
from the serious allegations of impersonation in respect of 62 candidates it
was stated on close scrutiny of the answer sheets at least six candidates had
certainly adopted unfair means to secure qualifying marks in the written test.
Report says that investigation prima facie established leakage of question
papers to a sizable number of candidates for the examination held on
23.11.2003. Further, it was also noticed that leakage of question paper was
pre-planned and widespread and the possibility of involvement of Railway / RRB
staff and also outsiders could not be ruled out and hence, recommended that the
matter be referred to CBI.
Court also referred to the reports of the superintendent of Police PEI(A)/2004/
CBI, Hyderabad which suggested certain measures to be adopted by the Board to
rule out such malpractices in future. Reports of the CBI of course, were not
available with the Railway Board when they took the 10 decision on 04.06.2004
to conduct a re-test but only the vigilance report and the complaints received.
are, in this case, primarily concerned with the question whether the High Court
was justified in interfering with the decision taken by the Board in conducting
a re-test for those who had obtained minimum qualifying marks in the first
written test and directing the Board to go ahead with the recruitment process
on the basis of first written test against which there were serious allegations
of irregularities and malpractices. When this matter came up for admission
before this Court on 20.01.2006, this Court permitted the Board to declare the
result of the second test and proceed to appoint the selected candidates,
however, it was ordered that the appointments made be subject to the result of
these appeals. We are informed that candidates who got qualified in the re-test
were already appointed and have joined service.
will first examine whether the High Court was justified in directing the Board
to go ahead with the recruitment process based on the first written test in the
wake of the report of the Vigilance and the materials collected by the CBI
subsequently. Report of the Vigilance has prima facie established that the
allegations of leakage of question papers, large scale 11 impersonation of
candidates, mass copying etc. was true. Possibility of the involvement of the
staff of Railways and outsiders was also not ruled out by the Vigilance. In
such circumstances, we fail to see how the High Court has concluded that there
is no illegality in going ahead with the recruitment process on the basis of
the first written test. We may indicate that the Railway Board had three
alternatives viz., (1) to cancel the entire written test, and to conduct a
fresh written test inviting applications afresh; (2) to conduct a re- test for
those candidates who had obtained minimum qualifying marks in the first written
test; and (3) to go ahead with the first written test (as suggested by the High
Court), confining the investigation to 62 candidates against whom there were
serious allegations of impersonation.
High Court applying the Wednesbury's principle accepted the last alternative by
rejecting the decision by the Railway Board to conduct a re- test for those
candidates who had obtained minimum qualifying marks in the first written test.
We are of the view that the High Court has wrongly applied the above principle
and misdirected itself in directing the Board to accept the third alternative.
We will examine the decision of the High Court by applying the principle of
Wednesbury unreasonableness as well as the doctrine of proportionality. Before
that let us examine both the concepts at some length.
Judicial review conventionally is concerned with the question of jurisdiction
and natural justice and the Court is not much concerned with the merits of the
decision but how the decision was reached. In Council of Civil (GCHQ Case) the
House of Lords rationalized the grounds of judicial review and ruled that the
basis of judicial review could be highlighted under three principal heads,
namely, illegality, procedural impropriety and irrationality.
as a ground of judicial review means that the decision maker must understand
correctly the law that regulates his decision making powers and must give
effect to it. Grounds such as acting ultra vires, errors of law and/or fact,
onerous conditions, improper purpose, relevant and irrelevant factors, acting
in bad faith, fettering discretion, unauthorized delegation, failure to act
etc., fall under the heading "illegality". Procedural impropriety may
be due to the failure to comply with the mandatory procedures such as breach of
natural justice, such as audi alteram partem, absence of bias, the duty to act
fairly, legitimate expectations, failure to give reasons etc.
Ground of irrationality takes in Wednesbury unreasonableness propounded in
Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947)2
All ER 680, Lord Greene MR alluded to the grounds of 13 attack which could be
made against the decision, citing unreasonableness as an `umbrella concept'
which covers the major heads of review and pointed out that the court can
interfere with a decision if it is so absurd that no reasonable decision maker
would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the
principle of unreasonableness and preferred to use the term irrationality as
`irrationality' I mean what can now be succinctly referred to as "Wednesbury's
unreasonableness", ....... It applies to a decision which is so outrageous
in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at
18. In R.
v. Secretary of State for the Home Department ex parte Brind (1991) 1 All ER
720, the House of Lords re-examined the reasonableness of the exercise of the
Home Secretary's discretion to issue a notice banning the transmission of
speech by representatives of the Irish Republican Army and its political party,
Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not
amount to an unreasonable exercise of discretion despite the issue involving a
denial of freedom of expression. House of Lords however, stressed that in all
cases raising a human rights issue proportionality is the appropriate standard
of review. The House of Lords in R (Daly) v. Secretary of State for the Home
Department (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury
14 unreasonableness has moved towards the doctrine of necessity and
proportionality. Lord Steyn noted that the criteria of proportionality are more
precise and more sophisticated than traditional grounds of review and went on
to outline three concrete differences between the two:- (1) Proportionality may
require the reviewing Court to assess the balance which the decision maker has
struck, not merely whether it is within the range of rational or reasonable
Proportionality test may go further than the traditional grounds of review in
as much as it may require attention to be directed to the relative weight
accorded to interests and considerations.
the heightened scrutiny test is not necessarily appropriate to the protection
of human rights.
Steyn also felt most cases would be decided in the same way whatever approach
is adopted, though conceded for human right cases proportionality is the
question arose as to whether doctrine of proportionality applies only where
fundamental human rights are in issue or whether it will come to provide all
aspects of judicial review. Lord Steyn in R. (Alconbury 15 Development Limited)
v. Secretary of State for the Environment, Transport and the Regions (2001) 2
All ER 929 stated as follows:- "I consider that even without reference to
the Human Rights Act, 1998 the time has come to recognize that this principle
(proportionality) is part of English administrative law not only when Judges
are dealing with Community acts but also when they are dealing with acts
subject to domestic law. Trying to keep the Wednesbury principle and
proportionality in separate compartments seems to me to be unnecessary and
Steyn was of the opinion that the difference between both the principles was in
practice much less than it was sometimes suggested and whatever principle was
applied the result in the case was the same. Whether the proportionality will
ultimately supersede the concept of reasonableness or rationality was also
considered by Dyson Lord Justice in R. (Association of British Civilian
Internees: Far East Region) v. Secretary of State for Defence  QB 1397
and stated as follows:- "We have difficulty in seeing what justification
there now is for retaining Wednesbury test ..... but we consider that it is not
for this Court to perform burial rights. The continuing existence of the
Wednesbury test has been acknowledged by House of Lords on more than one
occasion. A survey of the various judgments of House of Lords, Court of
Appeals, etc. would reveal for the time being both the tests continued to
Position in English Administrative Law is that both the tests that is.
Wednesbury and proportionality continue to co-exist and the proportionality 16
test is more and more applied, when there is violation of human rights, and
fundamental freedom and the Wednesbury finds its presence more on the domestic
law when there is violations of citizens ordinary rights.
principle has not so far replaced the Wednesbury principle and the time has not
reached to say good bye to Wednesbury much less its burial.
Huang case (2007) 4 All ER 15 (HL), the House of Lords was concerned with the
question whether denial of asylum infringes Article 8 (Right to Respect Family
Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty
of the authorities when faced with individuals who did not qualify under the
rules to consider whether the refusal of asylum status was unlawful on the
ground that it violated the individual's right to family life. A structured
proportionality test has emerged from that decision in the context of the
violation of human rights. In R (Daly) (supra) the House of Lords considered
both common law and Article 8 of the convention and ruled that the policy of
excluding prisoners from their cells while prison officers conducted searches,
which included scrutinizing privileged legal correspondence was unlawful.
the above-mentioned cases, mainly concerned with the violation of human rights
under the Human Rights Act, 1998 but demonstrated the movement away from the
traditional test of Wednesbury unreasonableness towards the test of
proportionality. But it is not safe to conclude that the principle of
Wednesbury unreasonableness has been replaced by the doctrine of
Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State
of U.P. v. Sheo Shanker Lal Srivastava and Others (2006) 3 SCC 276 after
referring to the judgment of the Court of appeal in Huang v.
of State for the Home Department (2005) 3 All ER 435, R. v. Secretary of State
of the Home Department, ex parte Daly (2001) 3 All ER 433 (HL) opined that
Wednesbury principle may not now be held to be applicable in view of the
development in constitutional law and held as follows:- "24. While saying
so, we are not oblivious of the fact that the doctrine of unreasonableness is
giving way to the doctrine of proportionality.
25. It is
interesting to note that the Wednesbury principles may not now be held to be
applicable in view of the development in constitutional law in this behalf.
See, for example, Huang v. Secy.
for the Home Deptt. wherein referring to R. v. Secy. of State of the Home
Deptt., ex p Daly, it was held that in certain 18 cases, the adjudicator may
require to conduct a judicial exercise which is not merely more intrusive than
Wednesbury, but involves a full-blown merit judgment, which is yet more than ex
p. Daly, requires on a judicial review where the court has to decide a
Shanker Lal Srivastava case was later followed in Indian Airlines Ltd. v.
Prabha D. Kanan (2006) 11 SCC 67. Following the above mentioned two judgments
in Jitendra Kumar And Others v. State of Haryana and Another (2008) 2 SCC 161,
the Bench has referred to a passage in HWR Wade and CF Forsyth on
Administrative Law, 9th Edition. (2004), pages 371- 372 with the caption
"Goodbye to Wednesbury" and quoted from the book which reads as
follows:- "The Wednesbury doctrine is now in terminal decline but the coup
de grace has not yet fallen, despite calls for it from very high
authorities" and opined that in some jurisdictions the doctrine of
unreasonableness is giving way to doctrine of proportionality."
Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were
again followed in State of Madhya Pradesh and Others v.
(2008) 3 SCC 273 and the Bench opined as follows:- "Furthermore the legal
parameters of judicial review have undergone a change. Wednesbury principle of
unreasonableness has been replaced by the doctrine of proportionality.".
due respect, we are unable to subscribe to that view, which is an overstatement
of the English Administrative Law.
Wednesbury principle of unreasonableness as such has not been replaced by the
doctrine of proportionality though that test is being applied more and more
when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in
the 10th Edition of Administrative Law (2009), has omitted the passage quoted
by this court in Jitender Kumar case and stated as follows:
the apparent persuasiveness of these views the coup de grace has not yet fallen
on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998
Act, the doctrine is regularly relied upon by the courts.
of its imminent demise are perhaps exaggerated."
Wednesbury and Proportionality - Wednesbury applies to a decision which is so
reprehensible in its defiance of logic or of accepted moral or ethical
standards that no sensible person who had applied his mind to the issue to be
decided could have arrived at it. Proportionality as a legal test is capable of
being more precise and fastidious than a reasonableness test as well as
requiring a more intrusive review of a decision made by a public authority
which requires the courts to `assess the balance or equation' struck 20 by the
decision maker. Proportionality test in some jurisdictions is also described as
the "least injurious means" or "minimal impairment" test so
as to safeguard fundamental rights of citizens and to ensure a fair balance
between individual rights and public interest. Suffice to say that there has
been an overlapping of all these tests in its content and structure, it is
difficult to compartmentalize or lay down a straight jacket formula and to say
that Wednesbury has met with its death knell is too tall a statement. Let us,
however, recognize the fact that the current trend seems to favour
proportionality test but Wednesbury has not met with its judicial burial and a
state burial, with full honours is surely not to happen in the near future.
Proportionality, requires the Court to judge whether action taken was really
needed as well as whether it was within the range of courses of action which
could reasonably be followed. Proportionality is more concerned with the aims
and intention of the decision-maker and whether the decision- maker has
achieved more or less the correct balance or equilibrium. Courts entrusted with
the task of judicial review has to examine whether decision taken by the
authority is proportionate, i.e. well balanced and harmonious, to this extent
court may indulge in a merit review and if the court finds that the decision is
proportionate, it seldom interferes with the decision taken and if it 21 finds
that the decision is disproportionate i.e. if the court feels that it is not
well balanced or harmonious and does not stand to reason it may tend to
Leyland and Anthony on Textbook on Administrative Law (5th edn.
2005) at p.331 has amply put as follows:
works on the assumption that administrative action ought not to go beyond what
is necessary to achieve its desired results (in every day terms, that you
should not use a sledgehammer to crack a nut) and in contrast to irrationality
is often understood to bring the courts much closer to reviewing the merits of
Courts have to develop an indefeasible and principled approach to
proportionality till that is done there will always be an overlapping between
the traditional grounds of review and the principle of proportionality and the
cases would continue to be decided in the same manner whichever principle is
adopted. Proportionality as the word indicates has reference to variables or
comparison, it enables the Court to apply the principle with various degrees of
intensity and offers a potentially deeper inquiry into the reasons, projected
by the decision maker.
shall now test the validity of the order impugned applying both the principles.
Application of the principles We have already indicated the three alternatives
available to the decision- maker (Board) when serious infirmities were pointed
out in the conduct of the first written test. Let us examine which was the best
alternative, the Board could have accepted applying the test of Wednesbury
unreasonableness. Was the decision taken by the Board to conduct a re-test for
those candidates who had obtained minimum qualifying marks in the first written
test so unreasonable that no reasonable authority could ever have decided so and
whether the Board before reaching that conclusion had taken into account the
matters which they ought not to have taken into account or had refused to take
into account the matters that they ought to have taken into account and the
decision taken by it was so unreasonable that no reasonable authority could
ever have come to it? Judging the decision taken by the Board applying the
standard laid down in the Wednesbury principle unreasonableness, the first
alternative that is the decision to cancel the entire written test and to
conduct a fresh written test would have been time consuming and expensive.
Initially 10,02,909 applications were received when advertisement was issued by
the Board out of which 5,86,955 were 23 found to be eligible and call letters were
sent to them for appearing in the written test held at various centres.
3,22,223 candidates appeared for the written test, out of which 2690 were
selected. Further the candidates who had approached the Court had also not
opted that course instead many of them wanted to conduct a re-test for 2690
candidates, the second alternative. The third alternative was to go ahead with
the first written test confining the investigation to 62 candidates against
whom there were serious allegations of impersonation. The Board felt in the
wake of the vigilance report and the reports of the CBI, it would not be the
best option for the Railway Administration to accept the third alternative
since there were serious allegations of malpractices against the test. From a
reasonable man's point of view it was felt that the second option i.e. to
conduct a re-test for those candidates who had obtained minimum qualifying
marks in the first written test was the best alternative.
will now apply the proportionality test to three alternatives suggested.
Principle of proportionality, as we have already indicated, is more concerned
with the aims of the decision maker and whether the decision maker has achieved
the correct balance. The proportionality test may require the attention of the
Court to be directed to the relative weight according to interest and
considerations. When we apply that test and look at the three 24 alternatives,
we are of the view that the decision maker has struck a correct balance in
accepting the second alternative. First alternative was not accepted not only
because such a process was time consuming and expensive, but nobody favoured
that option, and even the candidates who had approached the court was more in
favour of the second alternative. Applying the proportionality test also in our
view the Board has struck the correct balance in adopting the second
alternative which was well balanced and harmonious.
therefore hold, applying the test of Wednesbury unreasonableness as well as the
proportionality test, the decision taken by the Board in the facts and
circumstances of this case was fair, reasonable, well balanced and harmonious.
By accepting the third alternative, the High Court was perpetuating the
illegality since there were serious allegations of leakage of question papers,
large scale of impersonation by candidates, mass copying in the first written
are also of the view that the High Court has committed a grave error in taking
the view that the order of the Board could be judged only on the basis of the
reasons stated in the impugned order based on the report of vigilance and not
on the subsequent materials furnished by the CBI.
Possibly, the High Court had in mind the constitution bench judgment of this
New Delhi and Anr. (1978) 1 SCC 405
are of the view that the decision maker can always rely upon subsequent
materials to support the decision already taken when larger public interest is
involved. This Court in Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha
Prasar Samiti and Others, (1998) 9 SCC 236 found no irregularity in placing
reliance on a subsequent report to sustain the cancellation of the examination
conducted where there were serious allegations of mass copying. The principle
laid down in Mohinder Singh Gill's case is not applicable where larger public
interest is involved and in such situations, additional grounds can be looked
into to examine the validity of an order. Finding recorded by the High Court
that the report of the CBI cannot be looked into to examine the validity of
order dated 04.06.2004, cannot be sustained.
also find it difficult to accept the reasoning of the High Court that the copy
of the Vigilance report should have been made available to the candidates at
least when the matters came up for hearing. Copy of the report, if at all to be
served, need be served only if any action is proposed against the 26 individual
candidates in connection with the malpractices alleged. Question here lies on a
larger canvas as to whether the written test conducted was vitiated by serious
irregularities like mass copying, impersonation and leakage of question paper,
etc not against the conduct of few candidates. In this connection reference may
be made to the judgment of this Court in Bihar School Examination Board v.
Subhas Chandra Sinha and others, 1970(1) SCC 648. That was a case where 36
students of S.S.H.E. School, Jagdishpur and H.E. School Malaur, District
Shahbad, moved a Writ Petition before the Patna High Court against the order of
the Board canceling annual Secondary School Examination of 1969 in relation to
Hanswadih Centre in Shahbad District. The High Court quashed the order of
cancellation and directed the Board to publish the results. Against the
judgment and order of the High Court the Board filed an appeal by way of
special leave petition to this Court. This Court allowed the appeal and upheld
the order of the Board cancelling the examination. On the complaint that no
opportunity was given to the candidates to represent their case before cancellation,
this Court observed as follows:- "This is not a case of any particular
individual who is being charged with adoption of unfair means but of the
conduct of all the examinees or at least a vast majority of them at a
particular centre. If it is not a question of charging any one individually
with unfair means but to condemn the examination as ineffective for the purpose
it was held. Must the Board give an opportunity to all the candidates to
represent their cases? We think not. It was not 27 necessary for the Board to
give an opportunity to the candidates if the examinations as a whole were being
cancelled. The Board had not charged any one with unfair means so that he could
claim to defend himself. The examination was vitiated by adoption of unfair
means on a mass scale. In these circumstances it would be wrong to insist that
the Board must hold a detailed inquiry into the matter and examine each
individual case to satisfy itself which of the candidates had not adopted
unfair means. The examination as a whole had to go."
Applying the above principle, we are of the view that the finding recorded by
the High Court that non supply of the copy of the Vigilance report to the
candidates was a legal infirmity, cannot be sustained.
Petitioners, in our view, have also no legal right to insist that they should
be appointed to Group `D' posts. Final merit list was never published. No
appointment orders were issued to the candidates. Even if a number of vacancies
were notified for appointment and adequate number of candidates were found
successful, they would not acquire any indefeasible right to be appointed
against the existing vacancies. This legal position has been settled by a
catena of decisions of this Court. Reference can be made to the judgment of
this Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47; B. Ramanjini
and Others v. State of A.P. and Others, (2002) 5 SCC 533.
are also of the view that the High Court was in error in holding that the
materials available relating to leakage of question papers was limited and had
no reasonable nexus to the alleged large scale irregularity. Even a minute
leakage of question paper would be sufficient to besmirch the written test and
to go for a re-test so as to achieve the ultimate object of fair selection.
therefore, find no infirmity in the decision taken by the Board in conducting
the second written test for those who have obtained minimum qualifying marks in
the first written test rather than going ahead with the first written test
which was tainted by large scale irregularities and malpractices.
can now take further steps to regularize the results of the second test and the
appointments of the selected candidates. Ordered accordingly.
are accordingly allowed and the judgment of the High Court is set aside.
................................J. (Aftab Alam)
................................J. (K.S. Radhakrishnan)
May 06, 2010.