Supreme Court of India
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD & ANR.versusK. SHYAM KUMAR.& ORS.
- Citation
- 2010 INSC 283
- Decided
- 6 May 2010
- Disposal
- Appeal(s) allowed
- Bench
- AFTAB ALAM
Holding
The Railway Board's order to conduct a re‑test was fair, reasonable and proportionate; the High Court's setting aside of that order was erroneous.
Summary
In a recruitment drive for Group‑D railway posts, the Railway Board ordered a re‑test after a vigilance report revealed question‑paper leakage, mass copying and impersonation. The Central Administrative Tribunal upheld the order, but the High Court set it aside using the Wednesbury principle, directing appointments based on the original test except for 62 candidates. The Supreme Court examined whether the High Court correctly applied Wednesbury unreasonableness and whether the proportionality test favored the Board’s decision. It held that the Board’s choice of a re‑test was a reasonable, proportionate response to the large‑scale irregularities and that the High Court misapplied the principle. The Court also ruled that the candidates had no vested right to appointment without a final merit list and that non‑disclosure of the vigilance report was not a legal infirmity. Consequently, the High Court’s order was set aside and the Board’s re‑test order upheld.
Issues considered
- The correctness of the High Court's application of the Wednesbury principle to the Railway Board's re‑test order
- Whether the Railway Board's decision to conduct a re‑test is illegal, procedurally improper or irrational
- Whether the doctrine of proportionality applies and if the Board's decision is proportionate
- Whether the non‑supply of the vigilance report to candidates constitutes a legal infirmity
- Whether the candidates have a legal right to appointment in the absence of a final merit list
- Whether subsequent CBI material can be considered in reviewing the Board's order
Subjects
administrative lawjudicial reviewWednesbury unreasonablenessproportionalityrecruitmentmalpracticenatural justicevigilance reportCBIGroup D posts
Judgment
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[2010] 6 S.C.R. 291 .
CHAIRMAN, ALL INDIA RAILW~Y R~.CT. BOARD & ANR. A
. v.'
K. SHYAM KUMAR.& ORS.
(Civil Appeal Nos,. 5~?5-5677 of 2007)
~' ..... -
. ~~"'(;;.6; 201 O_ . B
[AFTAB ALAM AND K.S. RADHAKRISHNAN, JJ.]-'
Service Law·- Recruftmen_t drive -: Malpractice in the
written examination came to notice after preparation of select .
list - Vigilance report revealed leakage of question papers, ' C ·
mass copying and impersonation of candidates - Matter a/so
referred to CBI - Aµthorities directing re-test, of candidates
' who had obtained minim[Jjn qualifying marks in the written test
f' :.,....- '. • " '.
- Central Administrative Tribunal upheld the order for re-test
- In writ petition, High Court applying principle of wednesbury, D
· setting aside the order of re-test and directing appointment
of all the candidates excepithose against whom there was
a/legation of impersonation - On' appeal, held: The High ,
Court wrongly applied the prinCiple of Wednesbury and
misdirected itself in rejecting the decision of re-test - Applying E
the test of wednesbury as well as proportionality test, deCision
of the authorities, in thefacts of the case was fair, reasonable,·
balanced and harmonious - Candidates challenging the: re-
test have no legal right to appointment,' as final merit list was
not published - Doctrines I Principles - Doctrine of F
proportionality - Principle 'of wednesbury.
Administrative Law:
· .. <· Judicial Review. - Scope of:- Held: The judicial review
· can be· prinf!ipally on the basis of illegality, procedural, G
impropriety arid irrationality. · ·
7·
Wednesbury principle of unreasonableness and Doctrine
· of proportionality "'- Applicability of - Discussed. .\ . ,,
291
292 SUPREME COURT REP<?BTS [2010] 6 S.C.R.
A Principle of natural justice - Recruitment test - Vigilance
report revealing irregularities like mass copying,
impersonation and leakage of question paper - Cancellation
of test and direction for re-test - Non-furnishing of vigilance
report - Held: Non-supply of the report was not illegal as the
B question in the instant case was on a larger canvas - No
action was proposed against individual candidate.
Practice and Procedure - Subsequent event -
Consideration of - Held: Where larger public interest is
C involved, subsequent events can be looked into to examine
validitY of an order.
In a recruitment drive for filling up Group D posts,
appellant selected 2690 candidates. At the time of
verification of their original documents, it came to their
D notice that certain malpractices had taken place in the
written examination. Several complaints were also
received in this regard. The matter was referred to State
Vigilance department. Vigilance report revealed leakage
of question paper, mass copying and impersonation :-,f
E candidates in the written examination. T~e report also
indicated possibility of involvement of some employees
of the department and outsiders in the malpractices
detected. It recommended the matter to be referred to CBI.
The Railway Board after examining the vigilance
F report, by order dated 04.06.2004 directed a re-test for the
candidates, who had obtained minimum qualifying marks
in the written test.
Certain candidates, who had taken the first written
G test, filed application before Central Administrative
Tribunal questioning the order to coduct re-test and
sought declaration that they were eligible to be appointed
to Group D posts pursuant to the selection already made.
The Tribunal found no irregularity in the decision taken
H by the Board in re-conducting the test.
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 293
SHYAM KUMAR
Writ petition was preferred against the order of the A
Tribunal. High Court rejected the contentions that the
order was politically motivated and ma/a fide and applying
Wednesburry's principle of unreasonableness, held that
the decision of the Board was illegal, arbitrary and
unreasonable. The Court directed the Board to finalize B
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. Hence the present appeals.
Allowing the appeals, the Court c
HELD: 1.1. 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. D
The basis of judicial review could be highlighted under
three principal heads, namely, illegality, procedural
impropriety and irrationality. Illegality as a ground of
judicial review means that the decision maker must
understand correctly the law that regulates his decision E
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 F
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 a/teram
partem, absence of bias, the duty to act fairly, legitimate
expectations, failure to give reasons etc. [Para 16] [307- G
G-H; 308-A-C]
1.2. To say that Wednesbury principle of
unreasonableness has been replaced by doctrine of
proportionality, would be an over-statement of the
English Administrative Law. Wednesbury principle of H
294 SUPREME COURT REPORTS [2010] 6 S.C.R.
A unreasonableness has not been replaced by the doctrine
of proportionality though the proportionality test is being
applied more and more when violation of human rights
is alleged - Wednesbury applies to a decision which is
so reprehensible in its defiance of logic or of accepted
B 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
c 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
0
balance between individual rights and public interest.
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
E Wednesbury has met with its death knell is too tall a
statement. 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. [Paras 27, 28 29
F and 30] [312-G-H; 313-A-H; 314-A]
State of U: P. v. Shea Shanker Lal Srivastava and Ors.
(2006) 3 SCC 276; Indian Airlines Ltd. v. Prabha D. Kanan
(2006) 11 SCC 67; Jitendra Kumar and Ors. v. State of
Haryana and Anr. (2008) 2 SCC 161; State of Madhya
G Pradesh and Ors. v. Hazarilal (2008) 3 SCC 273, dissented
from.
1.3. Proportionality, requires the court to judge
whether action taken was really needed as. well as
H whether it was within the range of courses of action
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 295
SHYAM KUMAR
which could reasonably be followed. Proportionality is A
more concerned with the aims and intention of the
ae·cision-maker and whether the decision-maker has
achieved more or less the correct balance or equilibrium.
Courts entrusted with the task of judicial review have to
examine whether decision taken by the authority is B
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 finds that the
decision is disproportionate i.e. if the court feels that it is . c ·
not well balanced or harmonious and does not stand to
reason it may tend to interfere. [Para 31) [314-B-D]
1.4. Courts have to develop an indefeasible and
principled approach to proportionality till that is done,
there will always be an overlapping between the D
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 E
to apply the principle with various degrees of intensity
and offers a potentially deeper inquiry into the reasons,
projected by the decision maker. [Para 33) [314-G~H; 314-
A]
F
Union of India v. Tarun K. Singh, (2003) 11 SCC 768;
State of Maharashtra v. Prabhu (1994) 2 SCC 481; 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 G
(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 lfJdia,(2003) 2 SCC 673, referred
to. · "?' ·
H
296 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Associated Provincial Picture Houses Limited v.
Wednesbury Corporation (1947)2 All ER 680; R. v. Secretary
of State for the Home Department ex parte Brind (1991) 1 All
ER 720; R (Daly) v. Secretary of State for the Home
Department (2001) 2 AC 532 ; Council of Civil Service
B Unions vs. Minister of State for Civil Service 1984 (3) All ER
935; R. (Alconbury Development Limited) v. Secretary of
State for the Environment, Transporl and the Regions (2001)
2 All ER 929; R. (Association of British Civilian Internees: Far
East Region) v. Secretary of State for Defence 2003 QB 1397;
c Huang v. Secretary of State for the· Home Department 2007
(4) ALL ER 15 (HL) ; Huang v. Secretary of State for the
Home Deparlment (2005) 3 All ER 435; R. v. Secretary of
State of the Home Department, ex parle Daly (2001) 3 All ER
433 (HL), referred to.
D Administrative Law by HWR Wade and CF Forsyth, 9th
Edition. (2004) pages 371-372 and 10th Edition (2009)
Textbook on Administrative Law by Leyland and Anthony, 5th
Edition OUP 2005 p. 331, referred to.
E 2.1. Report of the Vigilance has prima facie
established that the allegations of leakage of question
papers, large scale impersonation of candidates, mass
copying etc. was true. Possibility of the involvement of
the staff of Railways and outsiders was also not ruled out
F by the Vigilance. In such circumstances, the High Court
concluded that there is no illegality in going ahead with
the recruitment process on the basis of the first written
test. The Railway Board had three alternatives viz., (1) to
cancel the entire written test, and to conduct a fresh
G 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
H
CHAIRMAN,-ALL INDIA-RAILWAY l{ECT: BOARD v. K. 297
SHYAM KUMAR
impersonation. The High Court applying the Wednesbury A
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. The High Court has wrongly
applied the above principle and misdirected itself in B
directing the Board to accept the third alternative. [Paras
14 and 15) [307-B-G]
2.2. When the test of proportionality is applied and in
view of the three alternatives, the decision maker has C
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 were more in
favour of the second alternative. Applying the D
proportionality test also, the Board has struck the correct
balance in adopting the second alternative which was
well balanced and harmonious. Applying the test of
Wednesbury unreasonableness as well as the
proportionality test, the decision taken by the Board in the E
facts and circumstances of the instnat 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 F
candidates, mass copying in the first written test. [Paras
36 and 37) [316-C-E]
2.3. The High Court was in error in holding that the
materials available relating to leakage of questio11 papers G
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. [Para 43) [319-C)
H
298 SUPREME COURT REPORTS -[2010] 6 S~C.R.
A 2.4. The respondents 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
B number of candidates were found successful, they would
not acquire any indefeasible right to be appointed against
the existing vacancies. [Para 42) [318-H; 319-A]
Shankarsan Dash v. Union of India (1991) 3 SCC 47; B.
C Ramanjini and Ors. v. State of A.P. and Ors. (2002). 5 SCC
533, relied on.
3. The finding recorded by the High Court that non-
s upply of the copy of the Vigilance Report to the
candidates was a legal infirmity, cannot be sustained. The
D 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
was also wrong. Copy of the report, if at all to be served,
need be served only if any action is proposed against the
E individual candidates in connection with the malpractices
alleged. In the instant case the 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. and
F not against the conduct of few candidates. [Paras 40 and
41) [317-E-G; 318-G]
Bihar School Examination Board v. Subhas Chandra
Sinha and Ors., 1970 (1) sec 648, relied on.
G 4. The High Court has also 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. The
H decision maker can always rely upon subsequent
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 299
SHYAM KUMAR
materials to support the decision already taken, when A
larger public interest is involved. Where larger public
interest is involved and in such situations, additional
grounds can be looked into to examine the validity of an
order. [Paras 38 and 39] [316-H; 317-A-D]
B
Madhyamic Shiksha Manda/, M.P. v. Abhilash Shiksha
Prasar Samiti and Ors. (1998) 9 SCC 236, relied on.
Mohinder Singh Gill and Anr. vs. The Chief Election
Commissioner, New Delhi and Anr. (1978) 1 SCC 405, held
·inapplicable. c
Case Law Reference:
(2003) 11 sec 768 referred to Para 10
(1994) 2 sec 481 referred to Para 10
D
(1998) 4 sec 37 referred to Para 11
(1993) 2 sec 573 referred to Para 11
(1990) 3 sec 157 referred to Para 11
c2003) 1 sec 285 referred to Para 11 E
(2000) 9 sec 283 referred to Para 11
(1993) Suppl.3 sec 268 referred to Para 11
(2003) 2 sec 673 referred to Para 11
F
1984 (3) All ER 935 referred to. Para 16
_(1947)2 All ER 680 referred to. Para 17
(1991) 1 All ER 720 referred to. Para 18
(2001) 2 AC 532 referred to. Para 18 G
(2001) 2 J\11 ER 929 referred to. Para 20
2003 QB 1397 referred to. Para 21
H
300 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 2007 (4) ALL ER 15 (HL) referred to. Para 23
(2006) 3 sec 276 dissented. Para 25
(2005) 3 All ER 435 referred to. Para 25
(2001) 3 All ER 433 (HL) referred to. Para 25
B
(2006) 11 sec 67 dissented. Para 26
(2008) 2 sec 161 dissented. Para 26
(2008) 3 sec 213 dissented. Para 27
c (1978) 1 sec 405 held inapplicable. Para 38
(1998) 9 sec 236 relied on. Para 39
1910 (1) sec 648 relied on. Para 40
(1991) 3 sec 47 relied on. Para 42
D
(2002) 5 sec 533 relied on. Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5675-5677 of 2007.
E From the Judgment & Order dated 15.03.2005 of the High
Court Judicature at Andhra Pradesh at Hyderabad Writ Petition
No. 17144 of 2004, W.P.M.P. No. 2461 of 2005 and W.P. No.
19354 of 2004.
D.K. Thakur, Naresh Kaushik, Nishant Patil, A. K. Sharma,
F W.S.A. Quadri, B. Krishna Prasad for the Appellants.
O.P. Bhadani, Brij Bhusan, K. Sarada Devi, Anjani Aiyagari
for the Respondents.
The Judgment of the Court was delivered by
G
K.S. RADHAKRISHNAN, J. 1. 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
H posts, for those candidates who had obtained minimum
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 301
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
qualifying marks in the first written examination against which A
large scale irregularities were noticed.
2. The RRB vide its employment notification 1/2003 dated
13.06.2003 invited applications for filling up Group 'D' posts
in the South Central Railway Zone, Secunderabad. In response B
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) C
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 D
received by the RRB stating that certain candidates had
indulged in mass copying in some centers, inc:ludinn leakage
of question papers 211,l i1r1personation of certain car.didci'.1~·~
Since large scale irregulm!ties and malpractices were noticed
it was decided to refer the matter to the State Vigilance E
Department. Tl'le 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 F
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 recommended that the matter be referred to
the Central Bureau of lnvestigation(CBI). G
3. The 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
H
302 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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 I irregularities involved, it has
B been deGided 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 earlier
examination. Thereafter, candidates may be called for PET on
C 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
o 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
E RRB to go ahead with the examination sqheduled on
26.09.2004.
5. Aggrieved by the order dated 04.06.04 certain
candidates who had taken the first written examination filed 0.A.
No.975/2004 before the Central Administrative Tribunal,
F Hyderabad questioning the decision to conduct re-test and also
1 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. Alternatively it was contended that even if the
G 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
H do so. Referring to paragraph 18.4 of the employmerrt notice
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 303
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
No.1/2003 it was contended that merely qualifying in the written A
and I 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 B
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. C
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 D
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 E
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 F
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 the other
candidates, who had obtained minimum qualifying marks in the G
. wriUen test.
8. The 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 · H
304 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B 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
c 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
0
unreasonable.
9. The High Court rejected the contentions that the order
was politically motivated and ma/a fide but applying
Wednesbwy's principle of unreasonableness the Court held
E 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.
F
10. 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
G 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
H
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 305
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
qualifying marks in the first written test, since allegations of A
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 B
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 C
Chandra Sinha (1970) 1 SCC 648; State of Maharashtra v.
Prabhu (1994) 2 SCC 481; Madhyamic Shiksha Manda/,
M.P. v. Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236
in support of his various contentions.
11. Learned counsel appearing for the respondents tried D
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- E
test. Learned 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 F
decisions of this Court viz., K. Vijaya/akshmi 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 G
(2000) 9 SCC 283; Babita Prasad vs. State of Bihar (1993)
Suppl.3 SCC 268; Onkar Lal Bajaj vs. Union of India (2003)
2 sec 673.
12. We heard learned counsel on either side at length and
we have also gone through the extract of the vigilance report H
306 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B 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
C 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 I RRB staff and also
outsiders could not be ruled out and hence, recommended that
the matter be referred to CBI. The High Court also referred to
D the reports of the superintendent of Police PEl(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 decision on 04.06.2004 to conduct a re-test
E 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
F 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
G 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 gc ..._cilified in the re-test were
H already appointed and have joine ervice.
CHAIRMAN, ALL INDIA RAILWAY RE;CT. BOARD v. K. 307
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
14. We will first examine wheth~r the High Court was A
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 'vigHance has prima facie
established that the allegations of leakage of question papers, B
large scale 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 C
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
0
(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 E
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 F
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 G
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 Service Unions Vs.
Minister of State for Civil Service (1984) 3 All ER 935 the
.H
308 SUPREME COURT REPORTS [2010] 6 S.C.R.
A (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. Illegality as a ground
of judicial review means that the decision maker must
B 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.,
C 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 a/teram partem,
absence of bias, the duty to act fairly, legitimate expectations,
failure to give reasons etc.
D 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
E 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
F preferred to use the term irrationality as follows:
"By '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
G
who .had applied his mind to the question to be decided
could have arrived at it."
18. In R. v. Secretary of State for the Home Department
ex parte Brind {1991) 1 All ER 720, the House of Lords re-
H examined the reasonableness of the exercise of the Home
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 309
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
Secretary's discretion to issue a notice banning the A
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 B
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 c
doctrine of necessity and proportionality. Lord Steyn noted that
the criteria of proportionality are more precise and more
sophisticated than traditional ground& of review and went on
to outline three concrete differences between the two:-
(1) Proportionality may require the reviewing Court to D
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 E
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 F
appropriate to the protection of human rights.
19. Lord 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 appropriate test.
G
20. The question arose as to whether doctri.ne 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 Development Limited) v.
Secretary of State for the Environment, Transport and the H
310 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Regions (2001) 2 All ER 929 stated as follows:-
"f 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
B 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".
c 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
D 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:-
E "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 H'ouse of Lords on more than one
occasion. A survey of the various judgments of House of
F
Lords, Court of Appeals, etc. would reveal for the time
being both the tests continued to co-exist."
22. Position in English Administrative Law is that both the
tests that is. Wednesbury and proportionality continue to co-
G exist and the proportionality 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.
Proportionality principle has not so far replaced the
H
. CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 311
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
Wednesbury principle and the time has not reached to say A
good bye to Wednesbury much less its burial.
),1'
· ·. 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 B
Human Rights Act, 1998. House of Lords ruled that it was the
dutYof 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 i_ndividual's
right to family life. A structured proportionality test has emerged C
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
0
, 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 E
proportionality. But it is not safe to conclude that the principle
of Wednesbury unreason~bleness has been replaced by the
doctrine of proportionality.
25. Justice S.B. Sinha, as His Lordship then was, speaking F
for the Bench in State of U.P. v. Sheo Shanker Lal Srivastava
and Others (2006) 3 SCC 276 after referring to the juc!_gment
of the Court of appeal in Huang v. Secretary 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) opinedthat Wednesbury principle mi.y not now be G
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
H
" 312 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B 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 fuff-
c 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
D 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),
E 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
F jurisdictions the doctrine of unreasonableness is giving
way to doctrine of proportionality."
27. Indian Airlines Ltd 's case and Sheo Shanker Lal
Srivastava's case (supra) were again followed in State of
G Madhya Pradesh and Others v. Hazarilal, (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
H proportionality.".
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 313
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
28. With due respect, we are unable to subscribe to that A
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
8
that test is being applied more and more when violation of
human rights is alleged. H. WR. 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:
c
"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 D
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 E
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 F
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 G
overlapping of all these tests in its content and structure, it is
difficult to compartmentalize or lay down a straighLjacket
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 H
3~4 'SUPREME COURT REPORTS [2010) 6 S.C.R.
A Wednesbury has not met with its judicial burial and a state
burial, with full ho111ours 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
8
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
C 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 finds that the decision is disproportionate i.e. if the court
feels that it is not well balanced or harmonious and does not
D stand to reason it may tend to interfere.
32. Leyland and Anthony on Textbook on Administrative
Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that
E
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 cl9ser to reviewing the merits of a
p
decision".
33. 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
G 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
H
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 315
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
potentially deeper inquiry into the reasons, projected by the A
decision maker.
34. We shall now test the validity of the order impugned
applying both the principles.
35. Application of the principles B
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 c
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 0
reaching that conL.USion h<:ld 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?
E
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 F
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 G
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 H
'\
316 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B had obtained minimum qualifying marks in the first written test
was the best alternative.
36. We 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
C 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 alternatives. we are of the view that
D ·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
E 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.
F 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
G 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
H Board could be judged only on the basis of the reasons stated
CHAIRMAN, ALL INDIA RAILWAY RECT. BOARD v. K. 317
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
in the impugned order based on the report of vigilance and not A
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 and Anr. (1978) 1 SCC 405
B
39. We 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 Manda/, M.P. v. Abhi/ash Shiksha
Prasar Samiti and Others, (1998) 9 SCC 236 found no
irregularity in placing reliance on a subsequent report to sustain C
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. D
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 E
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 F
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 G
Court in Bihar School Examination Board v. Subhas Chandra
Sinha and others, 1970(1) sec 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 H
318 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G copy of the Vigilance report to the candidates was a legal
infirmity, cannot be sustained.
42. 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
H issued to the candidates. Even if a number of vacancies were
CHAIRMAN7 ALL INDIA RAILWAY RECT. BOARD v. K. 319
SHYAM KUMAR [K.S. RADHAKRISHNAN, J.]
notified for appointment and adequate number of candidates A
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. 8
Ramanjini and Others v. State of A.P. and Others, (2002) 5
sec 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 C
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.
D
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 E
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.
K.K.T. Appeals allowed.
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