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Chairman, All India Railway Rec. Board & Anr Versus K. Shyam Kumar & Ors

2010 (5) TMI 861 - SUPREME COURT OF INDIA

CIVIL APPEAL NOS. 5675-5677 OF 2007 - Dated:- 6-5-2010 - 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 examination against which large scale irregularities were noticed. 2. The R .....

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alled 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 cer .....

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icated 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 Investigation(CBI). 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 obtained minimum qualifying marks i .....

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he 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 .....

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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 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 do so. Referring to paragra .....

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aken 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 .....

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d 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 written 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 whic .....

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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 .....

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re allegations of impersonation. 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 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 .....

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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 v. Prabhu (1994) 2 SCC 481; Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236 in support of his various contentions. 11. Learned counsel appearin .....

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llegal, 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) Su .....

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rsonation 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 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 / RRB sta .....

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d. 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 2 .....

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the wake of the report of the Vigilance and the materials collected by the CBI subsequently. 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 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 .....

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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 applyi .....

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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 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, act .....

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ited 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 foll .....

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exercise of the Home Secretary's discretion to issue a notice banning the 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 however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of rev .....

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ce 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 appropriate to the protection of human rights. 19. Lord Steyn also felt most cases would be decided in the same way whatever a .....

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man 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 w .....

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it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of 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-exist and the proportionality test is more and more applied, .....

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y 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 .....

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nesbury unreasonableness has been replaced by the doctrine of proportionality. 25. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State of U.P. v. Sheo Shanker Lal Srivastava and Others (2006) 3 SCC 276 after referring to the judgment 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) opined that Wednesbury principle may not now be held .....

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te 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 j .....

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s 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 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 proportionality.". 28. With due respe .....

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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 appli .....

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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 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 wit .....

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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 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 stand to reason it may tend to interfere. 32. Leyland and Anthony on Textbook on Ad .....

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tionality 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 n .....

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ed 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 conclusion had 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? Judging the decision taken by the Board .....

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r 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 th .....

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ated, is more concerned with the aims of the 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 the decision maker has struck a correct balance in accepting the second alternative. First alternative was not accepted not only because such a pro .....

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cumstances 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 imp .....

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.P. v. Abhilash Shiksha Prasar Samiti and Others, (1998) 9 SCC 236 found no irregularity in placing reliance on a subsequent report to sustain 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. Finding recorded by the High Court that t .....

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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 case where 36 students of S.S.H.E. School, Jagdishpur and H.E. School Malaur, District Shahbad, moved a Writ Pe .....

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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 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 giv .....

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