East
Coast Railway & ANR. Vs. Mahadev Appa Rao & Ors. [2010] INSC 457 (7
July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITION CIVIL APPEAL NO. 4964 OF
2010 ARISING OUT OF SLP (CIVIL) NO.27153 OF 2008 East Coast Railway & Anr.
...Appellants Versus Mahadev Appa Rao & Ors. ...Respondents WITH CIVIL
APPEAL NOS. 4965-4966 OF 2010 ARISING OUT OF SLP (CIVIL) NOS.27155-27156 OF
2008 K. Surekha ...Appellant Versus Mahadev Appa Rao & Ors. ...Respondents
1.
Leave granted.
2.
These appeals arise out of an order passed by the High Court of
Andhra Pradesh at Hyderabad whereby Writ Petition 2 No.15196 of 2007 has been
allowed and the order passed by the Central Administrative Tribunal, Hyderabad
Bench in OA No.748 of 2006 set aside.
3.
Senior Divisional Personnel Officer, East Coast Railway,
Visakhapatnam, issued a notification proposing to conduct a written/practical
typewriting test for filling up the vacant posts of Chief Typists in the
pay-scale of Rs.5500-9000. In response as many as 12 candidates appeared in the
test held on 30th October, 2006 the result whereof was announced on 22nd
November, 2006. Some of the candidates who failed to qualify made a
representation complaining about the manner in which the test was conducted alleging
that defective typewriting machines provided to them placed them at a
disadvantage vis-a-vis candidates declared successful. The successful
candidates also appear to have made a representation impressing upon the
authorities to go ahead with the interviews and to complete the selection
process expeditiously. Since that did not happen, OA No.748 of 2006 was filed
before the CAT by one of the successful 3 candidates for a direction to
respondent to proceed with the selection. In the meantime the Divisional
Manager of the appellant-Railways issued an order on 14th of December, 2006
cancelling the typewriting test conducted on 30th October, 2006. By another
notification of even date a fresh typewriting test was notified to be held on
16th December, 2006 for all the 12 in-service candidates who had appeared in
the earlier test. By an interim order passed by the Tribunal the railway
authorities were allowed to conduct the proposed second test in which the
applicant before the Tribunal could also appear. The applicant was at the same
time permitted to amend the prayer in the OA to assail the order passed by the
Divisional Manager of the Railways cancelling the earlier test.
4.
It is not in dispute that pursuant to the said notification and
the order passed by the Tribunal a fresh test was indeed conducted in which all
the eligible in-service candidates appeared although the result of the said
test has not been 4 announced so far. The Tribunal eventually dismissed OA
No.748 of 2006 holding that the test earlier conducted was rightly cancelled
inasmuch as the candidates were made to take the test in batches and no option
was given to them to bring their own typewriters. The Tribunal further held
that although some of the candidates had made representation as early as on
23rd October, 2006 seeking permission to use computers their request was not
considered. All this according to the Tribunal justified the cancellation of
the typewriting test held on 30th October and the issue of a notification for a
fresh test.
5.
Aggrieved by the order passed by the Tribunal Shri Mahadev Appa
Rao declared successful in the first test filed Writ Petition No.15196/2007
before the High Court of Andhra Pradesh which has by the order impugned in the
present appeal allowed the same and set aside the order passed by the Tribunal
as also the order by which the earlier test was cancelled. The High Court
further directed the 5 respondent to proceed with the selection process
pursuant to notification dated 18th October, 2006 and the practical test
conducted on 30th October, 2006 in terms thereof. The present appeals, as noted
above, assail the correctness of the said order.
6.
We have heard learned counsel for the parties at some length and
perused the record. The High Court has found fault with the order cancelling
the earlier test primarily because the same was unsupported by any reasons
whatsoever. The said order is in the following words:
"The
practical test conducted to Hd. Typists in scale Rs.5000-8000 (RSRP) on
30.10.2006 in connection with the selection of Chief Typist in scale
Rs.5500-9000 (RSRP) to form a panel of 4 UR + 1 SC and the results published
vide O.A. No. Estt/Pers/52/2006, Dt. 22.12.2006 are hereby cancelled."
7.
The High Court was also of the view that no reasons for cancellation
of the test having been recorded even on the file contemporaneously maintained
for that purpose, the 6 same could not be supplied in the affidavit filed in
reply to the Writ Petition challenging the said order, especially when the
cancellation of the test was not according to the High Court necessitated by
any irregularity in the conduct of the test or any mala fides vitiating the
same. In the absence of any such infirmity the cancellation of the examination
was arbitrary and unsustainable, declared the High Court.
8.
There is no quarrel with the well-settled proposition of law that
an order passed by a public authority exercising administrative/executive or
statutory powers must be judged by the reasons stated in the order or any
record or file contemporaneously maintained. It follows that the infirmity
arising out of the absence of reasons cannot be cured by the authority passing
the order stating such reasons in an affidavit filed before the Court where the
validity of any such order is under challenge. The legal position in this
regard is settled by the decisions of this Court in Commissioner of Police,
Bombay v. Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court observed :
"Public
orders, publicly made, in exercise of a statutory authority cannot be construed
in the light of explanations subsequently given by the officer making the order
of what he meant, or of what was in his mind, or what he intended to do. Public
orders made by public authorities are meant to have public effect and are intended
to affect the actings and conduct of those to whom they are addressed and must
be construed objectively with reference to the language used in the order
itself. "
9.
Reference may also be made to the decision of this Court in
Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors.
(1978) 1 SCC 405 where this Court reiterated the above principle in the
following words:
"8.
The second equally relevant matter is that when a statutory functionary makes
an order based on certain grounds, its validity must be judged by the reasons
so mentioned and cannot be supplemented by fresh reasons in the shape of
affidavit or otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get validated by additional
grounds later brought out."
10.
Later decisions of this Court in R. Vishwanatha Pillai v. State of
Kerala & Ors. (2004) 2 SCC 105 and Hindustan Petroleum Corporation Ltd. v.
Darius Shapur Chenai & Ors. (2005) 7 SCC 627 have re-stated the legal
position settled by the earlier two decisions noticed above.
11.
Relying upon the decision of this Court in Union of India and Ors.
v. Tarun K. Singh and Ors. (2003) 11 SCC 768, Mr. Malhotra all the same argued
that the challenge to the order cancelling the test was legally untenable as no
candidate had any legally enforceable right to any post until he was selected
and an order of appointment issued in his favour. Cancellation of the selection
process on the ground of malpractices could not, therefore, be subjected to
judicial scrutiny before a Writ Court, at the instance of a candidate who had
not even found a place in the select list.
12.
A Constitution Bench of this Court in Shankarsan Dash v. Union of
India (1991) 3 SCC 47 had an occasion to examine whether a candidate seeking
appointment to a civil post can be regarded to have acquired an indefeasible
right to appointment again such post merely because his name appeared in the
merit list of candidates for such post.
Answering
the question in the negative this Court observed:
"It
is not correct to say that if a number of vacancies are notified for
appointment and adequate number of candidates are found fit, the successful
candidates acquire an indefeasible right to be appointed which cannot be
legitimately denied. Ordinarily the notification merely amounts to an
invitation to qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no legal duty to fill up all
or any of the vacancies. However, it does not mean that the State has the
licence of acting in an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is bound to respect the
comparative merit of the candidates, as reflected at the recruitment test, and
no discrimination can be permitted. This correct position has been consistently
followed by this Court, and we do not find any discordant note in the decisions
in the State of Haryana v. Subhash Chander Marwaha 1974 (3) SCC 220;
Neelima
Shangla (Miss) v. State of Haryana 10 1986(4) SCC 268 or Jitender Kumar v.
State of Punjab 1985 (1) SCC 122."
13.
It is evident from the above that while no candidate acquires an
indefeasible right to a post merely because he has appeared in the examination
or even found a place in the select list, yet the State does not enjoy an
unqualified prerogative to refuse an appointment in an arbitrary fashion or to
disregard the merit of the candidates as reflected by the merit list prepared
at the end of the selection process.
The
validity of the State's decision not to make an appointment is thus a matter
which is not beyond judicial review before a competent Writ court. If any such
decision is indeed found to be arbitrary, appropriate directions can be issued
in the matter.
14.
To the same effect is the decision of this Court in Union
Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again
this Court reiterated that while a candidate who finds a place in the select
list 11 may have no vested right to be appointed to any post, in the absence of
any specific rules entitling him to the same, he may still be aggrieved of his
non-appointment if the authority concerned acts arbitrarily or in a malafide
manner.
That was
also a case where selection process had been cancelled by the Chandigarh
Administration upon receipt of complaints about the unfair and injudicious
manner in which the select list of candidates for appointment as conductors in
CTU was prepared by the Selection Board. An inquiry got conducted into the said
complaint proved the allegations made in the complaint to be true. It was in
that backdrop that action taken by the Chandigarh Administration was held to be
neither discriminatory nor unjustified as the same was duly supported by valid
reasons for cancelling what was described by this Court to be as a
"dubious selection".
15.
Applying these principles to the case at hand there is no
gainsaying that while the candidates who appeared in the typewriting test had
no indefeasible or absolute right to seek 12 an appointment, yet the same did
not give a licence to the competent authority to cancel the examination and the
result thereof in an arbitrary manner. The least which the candidates who were
otherwise eligible for appointment and who had appeared in the examination that
constituted a step in aid of a possible appointment in their favour, were
entitled to is to ensure that the selection process was not allowed to be
scuttled for malafide reasons or in an arbitrary manner. It is trite that
Article 14 of the Constitution strikes at arbitrariness which is an anti thesis
of the guarantee contained in Articles 14 and 16 of the Constitution. Whether
or not the cancellation of the typing test was arbitrary is a question which
the Court shall have to examine once a challenge is mounted to any such action,
no matter the candidates do not have an indefeasible right to claim an
appointment against the advertised posts.
16.
What then is meant for arbitrary/arbitrariness and how far can the
decision of the competent authority in the present case be described as
arbitrary? Black's Law 13 Dictionary describes the term "arbitrary"
in the following words:
"1.
Depending on individual discretion;
specif.,
determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a
judicial decision) founded on prejudice or preference rather than on reason or
fact.
This type
of decision is often termed arbitrary and capricious."
17.
To the same effect is the meaning given to the expression
"arbitrary" by Corpus Juris Secundum which explains the term in the
following words:
"ARBITRARY
- Based alone upon one's will, and not upon any course of reasoning and
exercise of judgment; bound by no law;
capricious;
exercised according to one's own will or caprice and therefore conveying a
notion of a tendency to abuse possession of power; fixed or done capriciously
or at pleasure, without adequate determining principle, non rational, or not
done or acting according to reason or judgment; not based upon actuality but
beyond a reasonable extent; not founded in the nature of things;
not
governed by any fixed rules or standard;
also, in
a somewhat different sense, absolute in power, despotic, or tyrannical; harsh
and 14 unforbearing. When applied to acts, "arbitrary" has been held
to connote a disregard of evidence or of the proper weight thereof; to express
an idea opposed to administrative, executive, judicial, or legislative
discretion; and to imply at least an element of bad faith, and has been
compared with "willful".
18.
There is no precise statutory or other definition of the term
"arbitrary". In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P.
and Ors. (AIR 1991 SC 537), this Court explained that the true import of the
expression "arbitrariness" is more easily visualized than precisely
stated or defined and that whether or not an act is arbitrary would be
determined on the facts and circumstances of a given case. This Court observed:
"The
meaning and true import of arbitrariness is more easily visualized than precisely
stated or defined. The question, whether an impugned act is arbitrary or not,
is ultimately to be answered on the facts and in the circumstances of a given
case. An obvious test to apply is to see whether there is any discernible
principle emerging from the impugned act and if so, does it satisfy the test of
reasonableness. Where a mode is prescribed for doing an act and there is no 15
impediment in following that procedure, performance of the act otherwise and in
a manner which does not disclose any discernible principle which is reasonable,
may itself attract the vice of arbitrariness. Every State action must be
informed by reason and it follows that an act uninformed by reason, is
arbitrary. Rule of law contemplates governance by laws and not by humour, whims
or caprices of the men to whom the governance is entrusted for the time being.
It is trite that `be you ever so high, the laws are above you'. This is what
men in power must remember, always."
19.
Dealing with the principle governing exercise of official power
Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial
Review of Administrative Action" emphasized how the decision-maker
invested with the wide discretion is expected to exercise that discretion in
accordance with the general principles governing exercise of power in a
constitutional democracy unless of course the statute under which such power is
exercisable indicates otherwise. One of the most fundamental principles of rule
of law recognized in all democratic systems is that the power vested in any
competent authority shall not be exercised arbitrarily and that the power is
exercised that it does not 16 lead to any unfair discrimination. The following
passage from the above is in this regard apposite:
"We
have seen in a number of situations how the scope of an official power cannot
be interpreted in isolation from general principles governing the exercise of
power in a constitutional democracy. The courts presume that these principles
apply to the exercise of all powers and that even where the decision-maker is
invested with wide discretion, that discretion is to be exercised in accordance
with those principles unless Parliament clearly indicates otherwise. One such
principle, the rule of law, contains within it a number of requirements such as
the right of the individual to access to the law and that power should not be
arbitrarily exercised. The rule of law above all rests upon the principle of
legal certainty, which will be considered here, along with a principle which is
partly but not wholly contained within the rule of law, namely, the principle
of equality, or equal treatment without unfair discrimination."
20.
Arbitrariness in the making of an order by an authority can
manifest itself in different forms. Non-application of mind by the authority
making the order is only one of them.
Every
order passed by a public authority must disclose due 17 and proper application
of mind by the person making the order. This may be evident from the order
itself or the record contemporaneously maintained. Application of mind is best
demonstrated by disclosure of mind by the authority making the order. And
disclosure is best done by recording the reasons that led the authority to pass
the order in question. Absence of reasons either in the order passed by the
authority or in the record contemporaneously maintained is clearly suggestive
of the order being arbitrary hence legally unsustainable.
21.
In the instant case the order passed by the competent authority
does not state any reasons whatsoever for the cancellation of the typing test.
It is nobody's case that any such reasons were set out even in any
contemporaneous record or file. In the absence of reasons in support of the
order it is difficult to assume that the authority had properly applied its
mind before passing the order cancelling the test.
22.
Mr. Malhotra's contention that the order was passed entirely on
the basis of the complaint received from the unsuccessful candidates is also of
no assistance. The fact that some representations were received against the
test or the procedure followed for the same could not by itself justify
cancellation of the test unless the authority concerned applied its mind to the
allegations levelled by the persons making the representation and came to the
conclusion that the grievance made in the complaint was not without merit.
If a test
is cancelled just because some complaints against the same have been made
howsoever frivolous, it may lead to a situation where no selection process can
be finalized as those who fail to qualify can always make a grievance against
the test or its fairness. What is important is that once a complaint or
representation is received the competent authority applies its mind to the same
and records reasons why in its opinion it is necessary to cancel the
examination in the interest of purity of the selection process or with a view
to preventing injustice or prejudice to 19 those who have appeared in the same.
That is precisely what had happened in Dilbagh Singh's case (supra). The
examination was cancelled upon an inquiry into the allegations of unjust,
arbitrary and dubious selection list prepared by the Selection Board in which
the allegations were found to be correct. Even in Tarun K. Singh's case (supra)
relied upon by Mr. Malhotra an inquiry into the complaints received against the
selection process was conducted no matter after the cancellation of the
examination. This Court in that view held that since the selection process was
vitiated by procedural and other infirmities cancellation thereof was perfectly
justified.
23.
That is not, however, the position in the instant case.
The order
of cancellation passed by the competent authority was not preceded even by a
prima facie satisfaction about the correctness of the allegations made by the
unsuccessful candidates leave alone an inquiry into the same. The minimum that
was expected of the authority was a due and proper application of mind to the
allegations made before it 20 and formulation and recording of reasons in support
of the view that the competent authority was taking. There may be cases where
an enquiry may be called for into the allegations, but there may also be cases,
where even on admitted facts or facts verified from record or an enquiry
howsoever summary the same maybe, it is possible for the competent authority to
take a decision, that there are good reasons for making the order which the
authority eventually makes. But we find it difficult to sustain an order that
is neither based on an enquiry nor even a prima facie view taken upon a due and
proper application of mind to the relevant facts. Judged by that standard the
order of cancellation passed by the competent authority falls short of the
legal requirements and was rightly quashed by the High Court.
24.
We may hasten to add that while application of mind to the
material available to the competent authority is an essential pre-requisite for
the making of a valid order, that requirement should not be confused with the
sufficiency of 21 such material to support any such order. Whether or not the
material placed before the competent authority was in the instant case
sufficient to justify the decision taken by it, is not in issue before us. That
aspect may have assumed importance only if the competent authority was shown to
have applied its mind to whatever material was available to it before
cancelling the examination. Since application of mind as a thresh-hold
requirement for a valid order is conspicuous by its absence the question
whether the decision was reasonable having regard to the material before the
authority is rendered academic. Sufficiency or otherwise of the material and so
also its admissibility to support a decision the validity whereof is being
judicially reviewed may even otherwise depend upon the facts and circumstances
of each case. No hard and fast rule can be formulated in that regard nor do we
propose to do so in this case. So also whether the competent authority ought to
have conducted an enquiry into or verification of the allegations before
passing an order of cancellation is a 22 matter that would depend upon the
facts and circumstances of each case. It may often depend upon the nature,
source and credibility of the material placed before the authority.
It may
also depend upon whether any such exercise is feasible having regard to the
nature of the controversy, the constraints of time, effort and expense. But
what is absolutely essential is that the authority making the order is alive to
the material on the basis of which it purports to take a decision. It cannot
act mechanically or under an impulse, for a writ court judicially reviewing any
such order cannot countenance the exercise of power vested in a public
authority except after due and proper application of mind.
Any other
view would amount to condoning a fraud upon such power which the authority
exercising the same holds in trust only to be exercised for a legitimate
purpose and along settled principles of administrative law.
25.
The next question then is whether the selection should be
finalized on the basis of the test held earlier or the matter allowed to be
re-examined by the authority in the context of 23 the representation received
by it. In our opinion the latter course would be more in tune with the demands
of justice and fairness especially when a second test has been conducted in
which all the in service candidates have appeared. The result of this
examination/test has not, however, been declared so far apparently because of
the pendency of these proceedings. If upon due and proper consideration of the
representation received from the candidates who were unsuccessful in the first
examination, the competent authority comes to the conclusion that the test
earlier held suffered from any infirmity or did not give a fair opportunity to
all the candidates, it shall be free to pass a fresh order cancelling the said
examination after recording such a finding in which event the second test
conducted under the directions of the Tribunal would become the basis for the
selection process to be finalized in accordance with law. In case, however, the
authority comes to the conclusion that the earlier test suffered from no
procedural or other infirmity or did not cause any prejudice to any candidate,
24 the second test/examination shall stand cancelled and the process of
selection finalized on the basis of the test held earlier. The order passed by
the High Court is to that extent modified and the present appeals disposed of
leaving the parties to bear their own costs. In order to avoid any delay in the
finalization of the process of appointments which have already been delayed, we
direct that the competent authority shall pass an appropriate order on the
subject expeditiously but not later than two months from today.
......................................J. (AFTAB ALAM)
......................................J.
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