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TMI Blog2010 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Candidates 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. Meanwhile, 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 also reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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. 6. The 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. 7. Aggrieved by the orders passed by the Tribunal in OA No.975 of 2004 and OA No.1008 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur, 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. Learned 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 has wrongly applied the principle of Wednesbury unreasonableness. Learned counsel placed reliance on the judgments of this Court in Union of India v. Tarun K. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 13. We 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. 14. We will first examine whether the High Court was justified in directing the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 17. 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 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 follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 confusing". 21. Lord 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 [2003] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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. of State 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 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 proportionality issue." 26. Sheo 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard 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. 31. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative 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 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 minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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. 40. We 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.
43. 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.
44. 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. X X X X Extracts X X X X X X X X Extracts X X X X
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