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2010 (5) TMI 861 - SC - Indian LawsError 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.
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