K.S.P Radhakrishnan, J.— We are in these cases concerned with the validity of an order dated 4-6-2004 issued by the Railway Board directing the Railway Recruitment Board (in short “RRB”) to conduct a retest 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. RRB vide its Employment Notification No. 1 of 2003 dated 13-6-2003 invited applications for filling up Group D posts in the South Central Railway Zone, Secunderabad. In response to the notification 10,02,909 applications were received by 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 9-11-2003 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) held on 3-2-2004 to 12-2-2004. The candidates who qualified in PET were called for verification of original certificates from 4-4-2004 to 12-2-2004.
3. During verification it was noticed that certain malpractices had taken place in the written examination. Meanwhile, several complaints were also received by RRB stating that certain candidates had indulged in mass copying in some centres, including leakage of question papers and impersonation of certain candidates. Since large-scale irregularities and malpractices were noticed it was decided to refer the matter to the State Vigilance Department.
4. The 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 impersonation of candidates in the written test. The report also indicated the possibility of involvement of some employees of the Railways and outsiders in the malpractices detected. The Vigilance Department also recommended that the matter be referred to the Central Bureau of Investigation (CBI).
5. The vigilance report and the various complaints were examined by the Railway Board and the Board after discussing the matters with RRB gave a direction vide its letter dated 4-6-2004 to conduct a retest for those candidates who had obtained minimum qualifying marks in the written examination. The operative portion of the order reads as follows:
“The Board having gone into complete details of the matter in view of the nature of malpractices/irregularities involved, it has been decided that candidates obtaining minimum qualifying marks may be subjected to another written examination by conducting the same in good educational institutions under tight control and supervision. This would ensure the exclusion of those who might have secured undue advantage in the earlier examination. Thereafter, candidates may be called for PET on the basis of fresh merit list irrespective of the fact whether some of them had appeared in PET held in February 2004.”
6. The Railway Board also ordered that the cases of the candidates referred to GEQD including those found guilty during the course of investigation by the Vigilance or CBI be dealt with as per the extant rules at the time of preparation of the final panel or later stage. RRB was directed to take steps to conduct written examination and PET at the earliest. The Railway Board vide its letter dated 1-9-2004 directed RRB to go ahead with the examination scheduled on 26-9-2004.
7. Aggrieved by the order dated 4-6-2004 certain candidates who had taken the first written examination filed OA No. 975 of 2004 before the Central Administrative Tribunal, Hyderabad questioning the decision to conduct retest and also 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 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.
8. The stand of the Board was that, there was no illegality in ordering a retest and Para 18.1 of the selection procedure empowered the Board to do so. Referring to Para 18.4 of Employment Notice No. 1 of 2003 it was contended that merely qualifying in the written and/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 CBI which prima facie revealed serious malpractices including mass copying, leakage of question papers and impersonation in the written examination.
9. The Tribunal found no irregularity in the decision taken by the Board in conducting a retest 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 retest. Further, it was also noticed that the final select list was never published, hence no legal rights of the applicants were infringed. OA No. 975 of 2004 was, therefore dismissed on 2-9-2004. OA No. 1008 of 2004 filed by few other candidates who had not taken the retest claiming identical reliefs was also dismissed by the Tribunal on 23-9-2004.
10. Aggrieved by the orders passed by the Tribunal in OA 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 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 retest for the other candidates, who had obtained minimum qualifying marks in the written test.
11. The High Court found no reasons to cancel the first written examination and to conduct a retest for 2690 candidates who got minimum qualifying marks in the written test which included 62 candidates against whom there were serious allegations of impersonation. Referring to the vigilance report, the High Court concluded that the controversy virtually boils down to identifying 62 candidates whose cases stood referred to CEQD/HYD for their certification and hence the process of recruitment could be proceeded with for the rest of the candidates. Further, it was also held by the High Court that the materials available to support the complaint of leakage of question papers were limited and had no nexus to the large-scale irregularities, noticed by the Railways. The High Court also noticed that when the order dated 4-6-2004 was passed only the vigilance report was available with the Board which was insufficient to support that order and the materials collected by 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 retest was arbitrary, illegal and unreasonable.
12. The High Court rejected the contentions that the order was politically motivated and mala fide but applying Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle of unreasonableness the Court held 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. Aggrieved by the above judgment RRB has come up with these appeals.
13. 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 CBI. The learned counsel submitted in the facts and circumstances of the case the best option available to the Railway Board was to conduct a retest for those candidates who had obtained minimum qualifying marks in the first written test, since allegations of mass copying, leakage of question papers and impersonation were noticed. The learned counsel also stated that the petitioners themselves had pointed out before the Tribunal that if a retest is conducted, the same be confined only to those 2690 candidates.
14. The learned counsel also submitted that the High Court has wrongly applied the principle of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness. The 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, (1994) 27 ATC 116 and Madhyamic Shiksha Mandal, M.P v. Abhilash Shiksha Prasar Samiti (1998) 9 SCC 236 in support of his various contentions.
15. The learned counsel appearing for the respondents tried 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 retest. The 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 the learned counsel placed reliance on various decisions of this Court viz. K. Vijayalakshmi v. Union of India (1998) 4 SCC 37, Asha Kaul v. State of J&K (1993) 2 SCC 573, (1993) 24 ATC 576, N.T Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157, Union of India v. Rajesh P.U (2003) 7 SCC 285, Munna Roy v. Union of India (2000) 9 SCC 283, Babita Prasad v. State of Bihar 1993 Supp (3) SCC 268, (1993) 25 ATC 598 and Onkar Lal Bajaj v. Union of India (2003) 2 SCC 673.
16. We heard the learned counsel on either side at length and we have also gone through the extract of the vigilance report which appears in para 15 of the judgment of the High Court. The 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 the 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. The 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 preplanned and widespread and the possibility of involvement of the Railway/RRB staff and also outsiders could not be ruled out and hence, recommended that the matter be referred to CBI.
17. The High Court also referred to the reports of the Superintendent of Police PEI(A)/2004.CBI, Hyderabad which suggested certain measures to be adopted by the Board to rule out such malpractices in future. Reports of CBI of course, were not available with the Railway Board when they took the decision on 4-6-2004 to conduct a retest but only the vigilance report and the complaints received.
18. 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 retest 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 the first written test against which there were serious allegations of irregularities and malpractices. When this matter came up for admission before this Court on 20-1-2006, 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 the candidates who got qualified in the retest were already appointed and have joined service.
19. We will first examine whether the High Court was 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 CBI subsequently. The 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 the 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 recruitment process on the basis of the first written test.
20. 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 retest 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.
21. The High Court applying the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle accepted the last alternative by rejecting the decision by the Railway Board to conduct a retest for those candidates who had obtained minimum qualifying marks in the first written test. We are of the view that the High Court has wrongly applied the above principle and misdirected itself in directing the Board to accept the third alternative. We will examine the decision of the High Court by applying the principle of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness as well as the doctrine of proportionality. Before that let us examine both the concepts at some length.
22. 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. In Council of Civil Service Unions v. Minister for Civil Service 1985 AC 374, (1984) 3 WLR 1174, (1984) 3 All ER 935 (HL) (GCHQ case) the House of Lords rationalised 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, acting in bad faith, fettering discretion, unauthorised delegation, failure to act, etc. 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 alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons, etc.
23. The ground of irrationality takes in Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness propounded in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (1948) 1 KB 223, (1947) 2 All ER 680 (CA) wherein 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 1985 AC 374, (1984) 3 WLR 1174, (1984) 3 All ER 935 (HL) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term “irrationality” as follows: (AC p. 410 G)
“By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness’ … 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.”
24. In R. v. Secy. of State for the Home Deptt., ex p Brind (1991) 1 AC 696, (1991) 2 WLR 588, (1991) 1 All ER 720 (HL) the House of Lords re-examined the reasonableness of the 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. The 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. The House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
25. The House of Lords in R. (Daly) v. Secy. of State for the Home Deptt. (2001) 2 AC 532, (2001) 2 WLR 1622, (2001) 3 All ER 433 (HL) demonstrated how the traditional test of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two: (AC p. 547 E-F)
(1) Proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review inasmuch 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.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded that for human rights cases proportionality is the appropriate test.
26. The question arose as to whether the doctrine 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 Developments Ltd.) v. Secy. of State for the Environment, Transport and the Regions (2003) 2 AC 295, (2001) 2 WLR 1389, (2001) 2 All ER 929 (HL) stated as follows: (WLR p. 1407, para 51)
“51. … I consider that even without reference to the Human Rights Act, 1998 the time has come to recognise 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 (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle and proportionality in separate compartments seems to me to be unnecessary and confusing.”
(emphasis supplied)
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.
27. Whether proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Assn. of British Civilian Internees: Far East Region) v. Secy. of State for Defence 2003 QB 1397, (2003) 3 WLR 80 (CA) and stated as follows: (QB p. 1413, paras 34-35)
We have difficulty in seeing what justification there now is for retaining Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) test … but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) 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.
28. The position in English Administrative Law is that both the tests, that is, Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) and proportionality continue to coexist and the proportionality test is more and more applied, when there is violation of human rights and fundamental freedoms and the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle finds its presence more on the domestic law when there is violation of citizens' ordinary rights. Proportionality principle has not so far replaced the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle and the time has not been reached to say goodbye to Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) much less its burial.
29. In Huang case (2007) 2 AC 167, (2007) 2 WLR 581, (2007) 4 All ER 15 (HL) the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. The 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) (2001) 2 AC 532, (2001) 2 WLR 1622, (2001) 3 All ER 433 (HL) 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 scrutinising privileged legal correspondence was unlawful.
30. Both the abovementioned cases were 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 (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness has been replaced by the doctrine of proportionality.
31. S.B Sinha, J. as His Lordship then was, speaking for the Bench in State of U.P v. Sheo Shanker Lal Srivastava (2006) 3 SCC 276 after referring to the judgment of the Court of Appeal in Huang v. Secy. of State for the Home Deptt. 2006 QB 1, (2005) 3 WLR 488, (2005) 3 All ER 435 (CA), R. (Daly) v. Secy. of State for the Home Deptt. (2001) 2 AC 532, (2001) 2 WLR 1622, (2001) 3 All ER 433 (HL), opined that Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle may not now be held to be applicable in view of the development in constitutional law and held as follows: (Sheo Shanker case (2006) 3 SCC 276)
“24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
25. It is interesting to note that the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. 2006 QB 1, (2005) 3 WLR 488, (2005) 3 All ER 435 (CA) wherein referring to R. (Daly) v. Secy. of State for the Home Deptt. (2001) 2 AC 532, (2001) 2 WLR 1622, (2001) 3 All ER 433 (HL) it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA), but involves a full-blown merit judgment, which is yet more than R. (Daly) (2001) 2 AC 532, (2001) 2 WLR 1622, (2001) 3 All ER 433 (HL), requires on a judicial review where the court has to decide a proportionality issue.”
(emphasis supplied)
32. Sheo Shanker Lal Srivastava case (2006) 3 SCC 276 was later followed in Indian Airlines Ltd. v. Prabha D. Kanan (2006) 11 SCC 67. Following the abovementioned two judgments in Jitendra Kumar v. State of Haryana (2008) 2 SCC 161 the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9th Edn. (2004), p. 371 with the caption “Goodbye to Wednesbury” and quoted from the book which reads as follows:
“The Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) 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 jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality.
33. Indian Airlines Ltd. case (2006) 11 SCC 67 and Sheo Shanker Lal Srivastava case (2006) 3 SCC 276 were again followed in State of M.P v. Hazarilal (2008) 3 SCC 273 and the Bench opined as follows: (Hazarilal case (2008) 3 SCC 273)
“11. Furthermore the legal parameters of judicial review have undergone a change. Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle of unreasonableness has been replaced by the doctrine of proportionality.”
(emphasis supplied)
34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law.
35. Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R Wade & C.F Forsyth in the 10th Edn. of Administrative Law (2009) has omitted the passage quoted by this Court in Jitender Kumar case (2008) 2 SCC 161 and stated as follows:
“Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness. Where a matter falls outside the ambit of the 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated.”
(emphasis applied)
Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) and Proportionality
36. Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) 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 the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.
37. 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 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. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e well balanced and harmonious, to this extent the 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.
38. Leyland and Anthony in Textbook on Administrative Law (5th Edn. OUP, 2005) at p. 331 has amply put as follows:
“Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday 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 closer to reviewing the merits of a decision.”
39. The 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 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.
40. We shall now test the validity of the order impugned applying both the principles.
Application of the principles
41. We have already indicated the three alternatives available to the decision-maker (the Board) when serious infirmities were pointed out in the conduct of the first written test. Let us examine which was the best alternative the Board could have accepted applying the test of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) unreasonableness. Was the decision taken by the Board to conduct a retest for those candidates who had obtained minimum qualifying marks in the first written test so unreasonable that no reasonable authority could ever have decided so and whether the Board before reaching that 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 applying the standard laid down in the Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) principle of 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 received when the 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 many of them wanted to conduct a retest 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 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 retest for those candidates who had obtained minimum qualifying marks in the first written test was the best alternative.
42. We will now apply the proportionality test to the three alternatives suggested. Principle of proportionality, as we have already indicated, 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. The 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 proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balanced and harmonious.
43. We, therefore hold, applying the test of Wednesbury (1948) 1 KB 223, (1947) 2 All ER 680 (CA) 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 and mass copying in the first written test.
44. We are also of the view that the High Court has committed a grave error in taking the view that the order of the Board could be judged only on the basis of the reasons stated in the impugned order based on the report of Vigilance and not on the subsequent materials furnished by CBI. Possibly, the High Court had in mind the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405
45. 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 Mandal, M.P v. Abhilash Shiksha Prasar Samiti (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 case (1978) 1 SCC 405 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. The finding recorded by the High Court that the report of CBI cannot be looked into to examine the validity of the order dated 4-6-2004, cannot be sustained.
46. We also find it difficult to accept the 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. 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 alleged. 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 not against the conduct of a few candidates.
47. In this connection reference may be made to the judgment of this Court in Bihar School Examination Board v. Subhas Chandra Sinha (1970) 1 SCC 648. That was a case where 36 students of SSHE School, Jagdishpur and HE School, Malaur, District Shahbad moved a writ petition before the Patna High Court against the order of the Board cancelling the 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 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:
“13. 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 give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go.”
48. Applying the above principle, we are of the view that the finding recorded by the High Court that non-supply of the copy of the Vigilance report to the candidates was a legal infirmity, cannot be sustained.
49. The 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. Union of India (1991) 3 SCC 47, (1991) 17 ATC 95 and B. Ramanjini v. State of A.P (2002) 5 SCC 533
50. 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 were 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 retest so as to achieve the ultimate object of fair selection.
51. 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 regularise the results of the second test and the appointments of the selected candidates. Ordered accordingly. The appeals are accordingly allowed and the judgment of the High Court is set aside.