2010 (5) TMI 861 - SC - Indian Laws

Error of recruitment process of railways - Validity of an order 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 - 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 - High Court held that the materials available relating to leakage of question papers was limited and had no reasonable nexus to the alleged large scale irregularity - also referred to the reports of the CBI, 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 decision on 04.06.2004 to conduct a re-test but only the vigilance report and the complaints received. Whether the High Court was justified in directing the Board to go ahead with the recruitment process based on the first written test? - 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. The 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. ''Test of 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 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. We, 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 test. Writ 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. UOI 1991 (4) TMI 444 - SUPREME COURT . We 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. We, 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. The Board can now take further steps to regularize the results of the second test and the appointments of the selected candidates. Ordered accordingly. Appeals are accordingly allowed and the judgment of the High Court is set aside.

Issues Involved:
1. Validity of the Railway Board's order to conduct a re-test for Group-D posts.
2. Examination of the Central Administrative Tribunal's decision.
3. High Court's judgment on the Railway Board's decision.
4. Application of Wednesbury unreasonableness and proportionality principles.
5. Legality of not providing the vigilance report to candidates.
6. Candidates' right to appointment based on the first written test.

Issue-wise Detailed Analysis:

1. Validity of the Railway Board's Order to Conduct a Re-test:
The Railway Board issued an order on 04.06.2004 for a re-test for candidates who obtained minimum qualifying marks in the first written examination due to large-scale irregularities, including mass copying, leakage of question papers, and impersonation. The vigilance report and subsequent CBI findings supported these allegations. The Board's decision aimed to ensure a fair selection process by conducting the re-test under strict supervision.

2. Examination of the Central Administrative Tribunal's Decision:
The Tribunal, in O.A. No.975/2004 and O.A. No.1008/2004, found no irregularity in the Board's decision to conduct a re-test. It noted that the majority of candidates had not objected, and the final select list was never published, thus no legal rights were infringed. The Tribunal dismissed the applications challenging the re-test.

3. High Court's Judgment on the Railway Board's Decision:
The High Court found the decision to cancel the first written examination and conduct a re-test for 2690 candidates arbitrary and unreasonable, violating Articles 14, 16, and 21 of the Constitution. It directed the Board to proceed with the recruitment based on the first written test, excluding 62 candidates with serious allegations of impersonation. The High Court applied Wednesbury's principle of unreasonableness and concluded that the vigilance report alone was insufficient to justify the re-test.

4. Application of Wednesbury Unreasonableness and Proportionality Principles:
The Supreme Court examined whether the High Court was justified in interfering with the Board's decision. It applied the Wednesbury unreasonableness and proportionality principles, concluding that the Board's decision to conduct a re-test was reasonable, fair, well-balanced, and harmonious. The Court noted that the Board had three alternatives: cancel the entire test, conduct a re-test for those who obtained minimum qualifying marks, or proceed with the first test while investigating the 62 candidates. The second alternative was deemed the best option to ensure a fair selection process.

5. Legality of Not Providing the Vigilance Report to Candidates:
The Supreme Court held that it was unnecessary to provide the vigilance report to candidates unless action was proposed against individual candidates. The issue was whether the written test was vitiated by serious irregularities, not against the conduct of a few candidates. The Court referenced the Bihar School Examination Board v. Subhas Chandra Sinha case, where it was held that it was not necessary to give an opportunity to all candidates if the examination as a whole was being canceled due to mass adoption of unfair means.

6. Candidates' Right to Appointment Based on the First Written Test:
The Supreme Court reiterated that candidates do not acquire an indefeasible right to be appointed merely by qualifying in the written test or PET. The final merit list was never published, and no appointment orders were issued. The legal position, as settled by previous decisions, indicates that candidates cannot insist on appointments against existing vacancies without a finalized selection process.

Conclusion:
The Supreme Court found no infirmity in the Railway Board's decision to conduct a re-test and allowed the appeals, setting aside the High Court's judgment. The Board was directed to regularize the results of the second test and proceed with the appointments of the selected candidates.

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