P. Kulshrestha (Dr.) v. Chancellor, Allahabad University did recognize the undetectable manipulation of results being achieved by remote controlled tactics and masked as viva voce test resulting the sabotaging of the purity of proceedings. This Court held ‘interviews as such are not bad but polluting it to attain the illegitimate ends is bad.’” 97. What is arbitrariness? How an action of the State held to be arbitrary, irrational or unreasonable. The test of reasonableness has been followed by relying upon wednesbury principle. In a case reported in (2001) 2 SCC 386, Om Kumar and Others v. Union of India, while holding that any administrative action which is arbitrary may be struck down under Article 14 of the Constitution of India. Hon’ble Supreme Court had proceeded to held as under: “But, in E.P. Royappa v. State of T.N., Bhagwati, J. laid down another test for purposes of Article 14. It was stated that if the administrative action was “arbitrary”. It could be struck down under Article 14. This principle is now uniformly followed in all Courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. (b) If, under Article 14, administrative action is to be struck down as discriminative, proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies and it is secondary review. 67. But where an administrative action is challenged as “arbitrary” under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy thee Rules, it is to be treated as arbitrary. (In G.B. Mahajan v. Jalgaon Municipal Council (SCC at p.111). Venkatachaliah, J. (as he then was) pointed out that “reasonableness” of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury Rules. In Tata Cellular v. Union of India (SCC at pp.679-80), Indian Express Newpapers Bombay (P) Ltd. v. Union of India (SCC at p.691). Supreme Court Employees’ Welfare Assn. v. Union of India (SCC at p.241) and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd. (SCC at p. 307) while judging whether the administrative action is “arbitrary” under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a wednesbury review always. 68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as “arbitrary” under Article 14, the principle of secondary review based on Wednesbury principles applies.” 98. The procedure adopted for interview as well as practical test as discussed hereinabove was highly arbitrary, unjust and improper, hence, violative of Article 14 of the Constitution of India. It does not meet the test required under Article 14 of the Constitution of India, hence, entire selection vitiates. MALAFIDE/BIASNESS 99. One of the arguments advanced by the petitioners’ counsel is that entire selection process was held at the dictate minister of department and high officials to accommodate their kith and kins. Accordingly, it has been submitted that authorities have exercise power malafidely to save their vested interest. Hon’ble Supreme Court in the case of Prabodh Sagar (supra) held that malice means “spite” or “ill-will”. It is the question of fact and not meaningless jargon. It has proper connotation. There must be factual support of allegation of malafide and mere user of word malafide would not be sufficed. Relevant portion from the judgment of Probodh Sagar (supra) is reproduced as under: “Mala fides have been alleged against the statutory Board (Punjab State Electricity Board) but the contextual facts negate such an allegation. Incidentally, be it noted that expression “mala fide” is not meaningless jargon and it has it proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner had become more of a liability than an asset and in the event of there being such a situation vis-à-vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Board’s employees also provide for voluntary (sic compulsory) retirement, a person of the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is non. Mere user of word “mala fide” by the petitioner would not by itself make the petition entertainable.” 100. In the case of V.K. Khanna (supra) their Lordships of Apex Court reiterated the same principle and held that an action, which is not bonafide, may not ipso facto amount to be malafide. Malice should be proved by specific evidence. Hon’ble Supreme Court held that bias in any action negates fairness and reasonableness and leads to arbitrariness and malafides. Mere apprehensions shall not be sufficient to establish bias unless it is proved by cogent evidence showing improper conduct and motive. However, Hon’ble Supreme Court further held that mala fide intent or bias attitude can not be proved straitjacket formula but shall depend upon the facts and circumstances of each case. 101. While citing earlier judgment of Apex Court, Hon’ble Supreme Court held that motive and intention deal with different field and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. While considering the mala fide act as well as malic in law and motive and distinguishing the intention with motive, in the case of V.K. Khanna (supra) Hon’ble Supreme Court held as under: “5. In almost all legal inquiries, “intention as distinguished form motive is the all-important factor” and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye as below: “For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse; Bromage v. Prosser. ‘Intentionally’ refers to the doing of the act; it does not mean that the defendant meant to be spiteful, thought sometimes, as for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.” 6. In Girja Shankar Pant case this Court having regard to the changing structure of the society stated that the modernization of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test or real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarathi (S. Parthasarathi v. State of A.P.) wherein Mathew, J. observed: (SCC pp.465-66, para 16) “16. The test of ‘real likelihood’ and ‘reasonable suspicion’ are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right-minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, M.R. in Metropolitan Properties Co. (f.g.C.) Ltd. v. Lannon (WLR at p.707)]. We should not, however, be understood to deny that the Court might with greater propriety apply the ‘reasonable suspicion’ test in criminal or in proceedings analogous to criminal proceedings.” 7. Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning opined that the word ‘bias’ is to denote a departure from the standing of even-handed justice. Girja Shankar case further noted the different note sounded by the English Courts in the manner following: (SCC pp.199-201, paras 30-34) “30.Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory Rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of R.v. bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2) observed: “……..In Civil litigation the matters in issue will normally have an economic impact; therefore a Judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case. The matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a Judge applied just as much if the Judge’s decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.” ’31. Lord Brown-Wilkinson at p. 136 of the report stated: “It is important not overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25.11.1998 would lead to a position where Judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a Judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the Judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.’s objects. Only in cases where a Judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a Judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the Judge would be well advised to disclose a possible interest.” ’32. Lord Hutton also in Pinochet case observed: “There could be cases where the interest of the Judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.” 33. Incidentally in Locabail [Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.] the Court of Appeal upon a detail analysis of the oft-cited decision in R. v. Gough together with the Dimes case, Pinochet case, Australian High Court’s decision in the case of J.R.L. ex p C.J.L., Re as also the Federal Court in Ebner, Re and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed: “By contrast, a real danger of bias might well be though to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the Judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case, or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge had expressed views, particularly in the course of the hearing, on such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly); or if, for any other reason, there were real ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere facts that a Judge, earlier in the same case or in a previous case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat; every application must be decided on the facts and circumstance of the individual case. The greater the passage of time between the event relied on showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.” 34. The Court of Appeal judgment in Locabail though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case- a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.” 8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore, would not arise. 9. It is in the same vein this Court termed it as reasonable likelihood of bias in Rattan Lal Sharma case (Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (co-education) Higher Secondary School wherein this Court was pleased to observe that the test is real likelihood of bias even if such bias was, in fact, the direct cause. In Rattan Lal Sharma case real likelihood of bias has been attrilbuted a meaning to the effect that there must be at least a substantial possibility of bias in order to render an administrative action invalid. Rattan Lal Sharma case thus, in fact, has not expressed any opinion which runs counter to that in Girja Shankar case and the decision in the last-noted case thus follows the earlier judgment in Rattan Lal case even though not specifically noticed therein.” 102. The aforesaid proposition of law also emerges from other cases i.e. S.R. Venkataraman (supra), Kumaon Mandal Vikas Nigam (supra), Ram Chandra (supra), Medley Minerals Indian Ltd. (supra), The Regional Manager (supra), K. Nagraj (supra), Hindustan Aluminum Corporation (supra) and Dr. J.N. Banavalikar (supra). 103. However, from the close reading of aforesaid judgment referred hereinabove, no finding may be recorded against the Minister of the Department or any person relating to their involvement for selection of their candidates, in view of fact that none of them have been arrayed as party but it is open for this Court to record a finding of bias or malice in law in the selection process adopted by the respondents from the material and evidence on record not only on the basis of pleading but also from the facts emerges from the perusal of record noted in the ordersheet referred hereinabove. 104. Hence, keeping in view the facts and circumstances of the case, even if, no malafide may be attributed to any individual person, the selection in question seems to suffer from malice in law. As discussed hereinabove, the provisions contained in Model Standing Orders have not been followed. The selection process was conducted in arbitrary manner. No record was maintained, of day to day proceeding during the selection process. The board had acted like a private body while proceeding with the selection process for the following reasons out of Others: (i) Provisions contained in Model Standing Orders, Acts and Rules referred in preceding paras were not followed. (ii) No day to day proceeding was recorded by the Committee either of interview or practical test. (iii) Records were not signed indicating the various dates when the practical tests were held. (iv) Entire records of practical test as discussed hereinabove whether it was of spinning or cycling test seem to have been prepared at one stretch. (v) The attendance register does not contain any column of year, month and date when the candidates appeared for interview or written test. (vi) Members of Selection Committee had not recorded marks individually by evaluating each and every candidate during the course of interview. (vii) While submitting reply to the second supplementary affidavit filed by the petitioner relating to the relationship of several candidates with higherups, substantial number of relationship has been admitted though the allegation to that extent may themselves not be sufficient to establish malafide. (viii) From non-compliance of industrial law, the non compliance of 1974 Rules and the manner in which the Board and its Committees had proceeded to fill up the vacancies as discussed in the present judgment selection process adopted by Board does not inspire confidence and seems to emit foul smell. Authorities have acted in a mannter treating the Board like personal property. 105. All thses facts as well as material discussed in the preceding paras, at the face of record indicates that entire selection process was sham and farce and the members of Selection Committee and acted in such a manner which is not expected from a statutory body. 106. In a welfare state like ours it is inevitable that the organs of the State is regulated and controlled by Rule of law. The jurisdiction of administration bodies is increasing day by day. The concept of Rule of law would lost its significance if the instrumentalities of the State are not charge with the duty to discharge their functions in a fair and just manner. 107. The dividing line between administrative power and the quasi judicial power has been gradually obliterated. The requirement of acting judicially is nothing but it means to act justly and fairly and not arbitrarily or capriciously. Now it has been settled by Apex Court that even if a decision taken is on administrative side while holding selection or appointment, yardstick applicable to judicial or quasi judicial authority in discharge of their duties shall also be applicable to administrative bodies. What was considered administrative power is now being considered as a quasi judicial power [vide: AIR 1970 SC 150, A.K. Kraipak and Others v. Union of India and Others (Constitution Bench)]. 108. In A.K. Kraipak (supra) the Constitution Bench of Apex Court while considering the ambit and scope of writ of certiorari had proceeded to held as under: “The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board v. Okita Co-operative Dairy Co. Ltd., 1953 NZLR 366. This Court in Purtabpore Co. Ltd. v. Cane Commissioner of Bihar, Civil Appeal No.1464 of 1968. D/-21.11.1968 (SC) held that the power to alter the area reserved under the Sugar-Cane (Control) Orders, 1966 is a quasi judicial power. With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection Board was an administrative power and test the validity of the impugned selections on that basis.” 109. Keeping in view the material on record and facts discussed hereinabove entire selection process seems to suffer from malice in law [vide: V.K. Khanna (supra)] and farce. For the reasons best know to the authorities no just fair procedure was adopted for the interview as well as for the practical test. Records were also not maintained in a proper manner. 110. In S.R. Venkataraman (supra) the Apex Court had referred Viscount Haldane while defending malice in law as under; to reproduce: “………Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808 at p. 813: “A person who inflicts an inquiry upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.” Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.” 111. It has been further held by Apex Court in a case of S.R. Venkataraman (supra) that while holding an action being suffer from malice in law it is not necessary to record a finding whether authorities had acted in good faith or in bad faith. Their Lordships of Apex Court in a case of S.R. Venkataraman (supra) are held as under: “6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorized purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban District Council, (1950) 1 KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the Court to which an appeal lies can and ought to adjudicate on the matter.” 7. The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in the Queen on the Prosecution of Richard Westbrook v. the Vestry of St. Pancras, (1890) 24 QBD 371 at p. 375: “If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.” This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Consolidation of Holdings Act 483.” 112. In view of above, entire selection seems to suffer from malice in law, hence, vitiates. 113. One of the arguments advanced by the learned counsel for the respondents is that a writ of certiorari can be issued only to correct error apparent at the face of record. Learned counsel for the respondents had relied upon the judgments reported in S.L. Hegde, (supra), Beant Singh (supra), Syed Yakoob (supra). As discussed hereinabove the entire selection process suffers from substantial illegality and also the error is apparent at the face of record. Moreover, keeping in view the Constitution Bench judgment in A.K. Kraipak (supra), a writ of certiorari may be issued, as the selection process seems to suffer from malice in law as well as arbitrary being violative of Article 14 of the Constitution of India. 114. In view of above facts and circumstances discussed hereinabove for the sake of repetition it can be said that the authorities while proceeding with the selection process had treated the Board like their private body and not acted in just and fair manner. It is unfortunate that inspite of catena of judgments of the Apex Court and even after lapse of lamost 60 years of independence, the instrumentalities of the State are holding selection to fill up the regular vacancies without adhering to Rule of law. Every unemployed youth of the country has got right to claim appointment against the vacancies created by the Government or its instrumentalities subject to his or her suitability in accordance to Rules. Denial of appointment to eligible person and induction of incompetent person in the service cadre either of the state or its instrumentalities is the root cause of deteriorating administration and expansion of loss to the administration or corporations. 115. The facts and circumstances discussed hereinabove point outs only one thing that entire selection was sham and farce and held not in a just and fair manner. Petitioners were fully entitled to approach this Court under extraordinary remedy of Article 226 of the Constitution of India before the declaration of result when substantial illegalities and arbitrariness were came into their knowledge. They have rightly invoked the extraordinary remedy of Article 226 of the Constitution of India to set the things right. This Court can not be moot spectator of unfair practice adopted during the course of selection process. 116. In view of above, writ petition deserves to be allowed with costs. In a case reported in (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association, T.N v. Union Of India., Hon’ble Supreme Court had laid down that whenever it is found that authorities had acted in a highly arbitrary manner then appropriate cost should be imposed to meet out the expenses incurred in litigation, time consumed, cost of litigation, mental agony and paid suffered by litigant while approaching the Court. 117. So far as bonus is concerned, petitioners have already submitted representation. The representations submitted by them for payment of bonus may very well be considered by the authorities in accordance to provisions contained in Payment of Bonus Act, 1965 and other law time being in force. Authorities may decide the petitioners’ representation in accordance to law forthwith by passing a speaking and reasoned order. 118. Subject to above, writ petition is allowed with costs. A writ in the nature of certiorari is issued quashing the impugned advertisement dated 15.3.2006 as contained in Annexure-6 to the writ petition with natural consequence. The steps taken in pursuance to impugned advertisement to fill up the vacancies in question are also quashed. A writ in the nature of mandamus is issued commanding the opposite parties to fill up the vacancies in question keeping in view the observation made in the present judgment expeditiously. Respondents’ board shall liable to pay costs to the tune of Rs.50,000/-, which shall be deposited in this Court within a period of one month. Petitioner shall be entitled to withdraw cost to the tune of Rs.40,000/-, out of which every petitioner shall be entitled to get Rs.5,000/- each. Rest of the cost shall be placed in the account relating to appointment of Amicus Curiae. Chief Secretary, Government of U.P. may hold an enquiry and take appropriate disciplinary action in accordance to law against the officers who are responsible to hold selection in question in such unruly manner as observed in the present judgment and also recover the cost from such officers. Registry shall return the records after lapse of statutory period of filing of Special Leave Petition in Apex Court. Writ petition is allowed accordingly, with costs as quantifies hereinabove. (Petition allowed) _____________