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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 ..... nable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kage 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. - Aftab Alam, K.S. Radhakrishnan JJ. JUDGMENT K.S. RADHAKRISHNAN, J. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination 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 earlier examination. Thereafter, 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 2004 . 4. 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 Board vide its letter dated 1st September, 2004 directed the RRB to go ahead with the examination scheduled on 26.09.2004. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unreasonable. 9. The High Court rejected the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; Union of India vs. Rajesh P.U. (2003) 7 SCC 285; Munna Roy vs. Union 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. 12. We 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailway 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. 15. 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. 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. 16. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 decisions. (2) 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. (3) Even the heightened scrutiny test is not necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has not reached to say good bye to Wednesbury much less its burial. 23. In 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. 24. Both 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. . 28. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law. 29. 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: Notwithstanding 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. Reports of its imminent demise are perhaps exaggerated. (emphasis applied). 30. 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. Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 34. We shall now test the validity of the order impugned applying both the principles. 35. 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 conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 37. We, 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 test. 38. We 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 Court in Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 41. 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. 42. Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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