TMI Blog2017 (4) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... amination process is unquestionable. It is too well settled a principle of law in light of the various earlier decisions of this Court that where there are allegations of the occurrence of large scale malpractices in the course of the conduct of any examination process, the State or its instrumentalities are entitled to cancel the examination. Coming to the case on hand, there were allegations of large scale tampering with the examination process. Scrutiny of the answer sheets (OMR) revealed that there were glaring aberrations which provide prima facie proof of the occurrence of a large scale tampering of the examination process. Denying power to the State from taking appropriate remedial actions in such circumstances on the ground that the State did not establish the truth of those allegations in accordance with the rules of evidence relevant for the proof of facts in a Court of law (either in a criminal or a civil proceeding), would neither be consistent with the demands of larger public interest nor would be conducive to the efficiency of administration. No binding precedent is brought to our notice which compels us to hold otherwise. Therefore, the 1st submission is rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F 2017 (Arising out of Special Leave Petition (Civil) Nos.19570-19573 OF 2016) - - - Dated:- 28-4-2017 - J. Chelameswar and Abhay Manohar Sapre, JJ. J U D G M E N T CHELAMESWAR, J. 1. Leave granted. 2. These appeals are preferred against the final judgement dated 27 June 2016 of the High court of Gujarat in Letters Patent Appeal No. 73 of 2016 in Special Civil Application No. 11149 of 2015 with Letters Patent Appeal No. 74 of 2016 in Civil Application No. 11685 of 2015 with Civil Application No.1066 of 2016 in Letters Patent Appeal No. 74 of 2016 with Special Civil Application No 11149 of 2015. The facts leading to the instant litigation are as follows: 3. The Appellants herein are candidates who successfully appeared in the examination conducted by the Respondents for recruitment to the post of Revenue Talati but were not appointed. 4. The State of Gujarat decided to create a new post of Revenue Talati, under the control of the Revenue Department. Revenue talatis are to maintain revenue records, collect revenue etc. The creation of these posts is meant to ease the burden on existing talati-cum-mantris who were under the control of the Panchayat Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation is that they had collected money from some of the candidates who were to appear in the said examination by assuring them appointments. 9. However the examination process went ahead. In the process of evaluating the OMR sheets, it was noticed that a large number of OMR sheets had specific markings. On 26.05.2014 the police authorities informed the Chairman of the COMMITTEE that during interrogation of the two arrested persons, it emerged that they had advised the candidates to put a b mark on the right side of the OMR sheet. 10. Thereafter, the entire data was sent to a forensic science laboratory for further investigation. The investigation revealed 284 OMR sheets with the specific mark. The COMMITTEE decided to eliminate those candidates from consideration. Therefore, a provisional merit list was declared on 10.10.2014. 8465 candidates were placed in the list. 11. In the meanwhile, complaints were received by different authorities of the State alleging the commission of a large number of malpractices in connection with the examination: - a complaint from Bhubhai Damor on 17.10.2014. - The Collector, Sabrakantha District forwarded a complaint received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Application No.11685 of 2015 allowing the Respondents to proceed with fresh recruitment for 980 seats. The Petitioners filed LPAs No.73 and 74 of 2016 challenging the 14.12.2015 order. The Petitioners also filed an application seeking a stay on fresh recruitment being LPA No.74/2016. The Gujarat High Court dismissed all applications and appeals vide the impugned judgment holding that the decision of the COMMITTEE was not unreasonable since there was some material on the basis of which the decision was made, viz. the various allegations that have cast a shadow over the sanctity of the recruitment process. Hence this appeal. 15. The appellants argued (i) that cancellation of the examination without any investigation or proof of the allegations of a vitiated examination process is illegal; (ii) the legality of the GR-II must be tested on the touchstone of the principle of Wednesbury Reasonableness and the principle of proportionality; (iii) Tested in the light of the twin principles mentioned above, the decision of the COMMITTEE is both unreasonable and disproportionate to the alleged mischief, unreasonable since it is based on the irrelevant consideration of the embarrassm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. Irrationality by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration under our Constitution[Ramana Dayaram Shetty v. International Airport Authority of India Others, (1979) 3 SCC 489]. The authority of the State to take appropriate measures to maintain the purity of any examination process is unquestionable. It is too well settled a principle of law in light of the various earlier decisions of this Court that where there are allegations of the occurrence of large scale malpractices in the course of the conduct of any examination process, the State or its instrumentalities are entitled to cancel the examination.[ Nidhi Kaim v. State of Madhya Pradesh Others, (2016) 7 SCC 615 at para 23: Even otherwise, the argument of the appellants is required to be rejected for the following reasons: Under the scheme of our Constitution, the executive power of the State is co-extensive with its legislative power. In the absence of any operative legislation, the executive power could certainly be exercised to protect the public interest. The right of each one of the appellants herein for admission to the medical colleges in the State of Madhya Pradesh is itself an emanation of the State s executive action. No doubt, even executive action of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion process.[ Nidhi Kaim v. State of Madhya Pradesh Others, (2016) 7 SCC 615 see para 42.1 and 42.2 at 649] 23. Coming to the case on hand, there were allegations of large scale tampering with the examination process. Scrutiny of the answer sheets (OMR) revealed that there were glaring aberrations which provide prima facie proof of the occurrence of a large scale tampering of the examination process. Denying power to the State from taking appropriate remedial actions in such circumstances on the ground that the State did not establish the truth of those allegations in accordance with the rules of evidence relevant for the proof of facts in a Court of law (either in a criminal or a civil proceeding), would neither be consistent with the demands of larger public interest nor would be conducive to the efficiency of administration. No binding precedent is brought to our notice which compels us to hold otherwise. Therefore, the 1st submission is rejected. 24. The next question is whether the impugned decision could be sustained judged in the light of the principles of Wednesbury unreasonableness . In the language of Lord Diplock, the principle is that a decision which is so o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtionality test as a primary reviewing authority and when does the court apply the Wednesbury rule as a secondary reviewing authority? From the earlier review of basic principles, the answer becomes simple. In fact, we have further guidance in this behalf. and concluded; 66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying proportionality and is a primary reviewing authority. 67. But where an administrative action is challenged as arbitrary under Article 14 on the basis of E.P. Royappa v. State of T.N., (1974) 4 SCC 3, (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is rational or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 14? is the question. Identifying all the candidates who are guilty of malpractice either by criminal prosecution or even by an administrative enquiry is certainly a time consuming process. If it were to be the requirement of law that such identification of the wrong doers is a must and only the identified wrongdoers be eliminated from the selection process, and until such identification is completed the process cannot be carried on, it would not only result in a great inconvenience to the administration, but also result in a loss of time even to the innocent candidates. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrong doers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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