REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO. 4964     OF 2010 ARISING OUT OF SLP (CIVIL) NO.27153 OF 2008

East Coast Railway & Anr.    …Appellants

                           Versus

Mahadev Appa Rao & Ors.                           …Respondents

WITH

CIVIL APPEAL NOS. 4965-4966    OF 2010 ARISING OUT OF SLP (CIVIL) NOS.27155-27156 OF 2008

K. Surekha …Appellant

                           Versus

Mahadev Appa Rao & Ors.                           …Respondents

J U D G M E N T

1.     Leave granted.

2. These appeals arise out of an order passed by the High  

Court of Andhra Pradesh at Hyderabad whereby Writ Petition

No.15196 of 2007 has been allowed and the order passed by  

the Central Administrative Tribunal, Hyderabad Bench in OA  

No.748 of 2006 set aside.

3. Senior Divisional Personnel Officer, East Coast Railway,  

Visakhapatnam, issued a notification proposing to conduct a  

written/practical  typewriting  test  for  filling  up  the  vacant  

posts of Chief Typists in the pay-scale of Rs.5500-9000. In  

response  as many as 12 candidates  appeared in  the test  

held  on  30th October,  2006  the  result  whereof  was  

announced on 22nd November, 2006. Some of the candidates  

who  failed  to  qualify  made  a  representation  complaining  

about the manner in which the test was conducted alleging  

that defective typewriting machines provided to them placed  

them  at  a  disadvantage  vis-a-vis  candidates  declared  

successful.  The successful  candidates also appear to have  

made a representation impressing upon the authorities to go  

ahead  with  the  interviews  and  to  complete  the  selection  

process expeditiously. Since that did not happen, OA No.748  

of 2006 was filed before the CAT by one of the successful  

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candidates for a direction to respondent to proceed with the  

selection.  In  the  meantime the  Divisional  Manager  of  the  

appellant-Railways  issued  an  order  on  14th of  December,  

2006  cancelling  the  typewriting  test  conducted  on  30th  

October, 2006. By another notification of even date a fresh  

typewriting test was notified to be held on 16th December,  

2006 for all the 12 in-service candidates who had appeared  

in  the  earlier  test.  By  an  interim  order  passed  by  the  

Tribunal the railway authorities were allowed to conduct the  

proposed  second  test  in  which  the  applicant  before  the  

Tribunal could also appear. The applicant was at the same  

time permitted to amend the prayer in the OA to assail the  

order  passed  by  the  Divisional  Manager  of  the  Railways  

cancelling the earlier test.

4. It is not in dispute that pursuant to the said notification  

and the order passed by the Tribunal a fresh test was indeed  

conducted  in  which  all  the  eligible  in-service  candidates  

appeared although the result of the said test has not been  

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announced  so  far. The  Tribunal  eventually  dismissed  OA  

No.748 of 2006 holding that the test earlier conducted was  

rightly cancelled inasmuch as the candidates were made to  

take the test in batches and no option was given to them to  

bring their own typewriters. The Tribunal further held that  

although some of the candidates had made representation  

as early as on 23rd October, 2006 seeking permission to use  

computers  their  request  was  not  considered. All  this  

according  to  the  Tribunal  justified  the  cancellation  of  the  

typewriting  test held  on  30th October and  the  issue  of  a  

notification for a fresh test.   

5. Aggrieved  by  the  order  passed  by  the  Tribunal  Shri  

Mahadev Appa Rao declared successful in the first test filed  

Writ  Petition  No.15196/2007  before  the  High  Court  of  

Andhra  Pradesh which  has  by the order  impugned in  the  

present  appeal  allowed the same and set aside the order  

passed by the Tribunal as also the order by which the earlier  

test  was  cancelled. The  High  Court  further  directed  the  

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respondent to proceed with the selection process pursuant  

to  notification  dated 18th October,  2006 and  the practical  

test conducted on 30th October, 2006 in terms thereof.  The  

present appeals, as noted above, assail  the correctness of  

the said order.

6. We have heard learned counsel for the parties at some  

length and perused the record. The High Court has found  

fault  with  the  order  cancelling  the  earlier  test  primarily  

because  the  same  was  unsupported  by  any  reasons  

whatsoever. The said order is in the following words:

“The practical test conducted to Hd. Typists  in scale Rs.5000-8000 (RSRP) on 30.10.2006  in  connection  with  the  selection  of  Chief  Typist in scale Rs.5500-9000 (RSRP) to form  a  panel  of  4  UR  +  1  SC  and  the  results  published  vide  O.A.  No.  Estt/Pers/52/2006,  Dt. 22.12.2006 are hereby cancelled.”

7. The High Court was also of the view that no reasons for  

cancellation of the test having been recorded even on the  

file  contemporaneously  maintained  for  that  purpose, the  

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same could not be supplied in the affidavit filed in reply to  

the Writ Petition challenging the said order, especially when  

the cancellation of the test was not according to the High  

Court necessitated by any irregularity in the conduct of the  

test or any mala fides vitiating the same.  In the absence of  

any such infirmity the cancellation of the examination was  

arbitrary and unsustainable, declared the High Court.

8. There is no quarrel with the well-settled proposition of  

law that  an order passed by a public  authority  exercising  

administrative/executive  or  statutory  powers must  be  

judged by the reasons stated in the order or any record or  

file  contemporaneously  maintained.  It  follows  that  the  

infirmity  arising out  of  the  absence of  reasons cannot  be  

cured  by  the  authority  passing  the  order  stating  such  

reasons  in  an  affidavit  filed  before  the  Court  where  the  

validity  of  any  such  order  is  under  challenge.  The  legal  

position  in  this  regard  is  settled  by  the  decisions  of  this  

Court  in  Commissioner  of  Police,  Bombay  v.  

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Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court  

observed :  

“Public orders, publicly made, in exercise of a  statutory  authority  cannot  be  construed  in  the light of explanations subsequently given  by the officer making the order of what he  meant, or of what was in his mind, or what  he  intended  to  do.  Public  orders  made  by  public  authorities  are meant to have public  effect and are intended to affect the actings  and  conduct  of  those  to  whom  they  are  addressed and must be construed objectively  with reference to the language used in the  order itself. ”

9. Reference  may also  be made to  the  decision  of  this  

Court in Mohinder Singh Gill and Anr.  v. Chief Election  

Commissioner, New Delhi and Ors.  (1978) 1 SCC 405  

where  this  Court  reiterated  the  above  principle  in  the  

following words:

“8.  The  second  equally  relevant  matter  is  that when a statutory functionary makes an  order based on certain grounds,  its  validity  must be judged by the reasons so mentioned  and  cannot  be  supplemented  by  fresh  reasons  in  the  shape  of  affidavit  or  otherwise.  Otherwise,  an  order  bad  in  the  beginning may, by the time it comes to court  on account of a challenge, get validated by  additional grounds later brought out.”

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10. Later decisions of this Court in R. Vishwanatha Pillai  

v. State  of  Kerala  &  Ors.  (2004)  2  SCC  105 and  

Hindustan  Petroleum  Corporation  Ltd.  v. Darius  

Shapur Chenai & Ors. (2005) 7 SCC 627 have re-stated  

the legal position settled by the earlier two decisions noticed  

above.

11. Relying  upon the  decision  of  this  Court  in  Union of  

India and Ors.  v. Tarun K. Singh and Ors. (2003) 11  

SCC  768,  Mr.  Malhotra  all  the  same  argued  that  the  

challenge  to  the  order  cancelling  the  test  was  legally  

untenable as no candidate had any legally enforceable right  

to  any  post  until  he  was  selected  and  an  order  of  

appointment  issued  in  his  favour.   Cancellation  of  the  

selection process on the ground of malpractices could not,  

therefore,  be  subjected  to  judicial  scrutiny  before  a  Writ  

Court,  at  the  instance  of  a  candidate  who  had  not  even  

found a place in the select list.

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12. A  Constitution  Bench  of  this  Court  in  Shankarsan  

Dash v. Union of India (1991) 3 SCC 47 had an occasion  

to examine whether a candidate seeking appointment to a  

civil post can be regarded to have acquired an indefeasible  

right  to  appointment  again  such post  merely  because  his  

name appeared in the merit list of candidates for such post.  

Answering the question in the negative this Court observed:

“It is not correct to say that if a number of  vacancies  are  notified  for  appointment  and  adequate number of candidates are found fit,  the  successful  candidates  acquire  an  indefeasible  right  to  be  appointed  which  cannot be legitimately denied. Ordinarily the  notification merely amounts to an invitation  to  qualified  candidates  to  apply  for  recruitment  and  on  their  selection  they  do  not acquire any right to the post. Unless the  relevant  recruitment  rules  so  indicate,  the  State is under no legal duty to fill  up all or  any of  the vacancies.  However,  it  does not  mean that the State has the licence of acting  in an arbitrary manner. The decision not to  fill  up the vacancies  has to  be taken bona  fide  for  appropriate  reasons.  And  if  the  vacancies or any of them are filled up, the  State  is  bound  to  respect  the  comparative  merit  of the candidates,  as reflected at the  recruitment  test,  and  no discrimination  can  be permitted. This correct position has been  consistently  followed by this  Court,  and we  do  not  find  any  discordant  note  in  the  decisions in the State of Haryana v. Subhash  Chander  Marwaha  1974  (3)  SCC  220;  Neelima Shangla (Miss) v.  State of Haryana  

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1986(4) SCC 268 or Jitender Kumar v. State  of Punjab 1985 (1) SCC 122.”

13. It is evident from the above that while no candidate  

acquires an indefeasible right to a post merely because he  

has appeared in the examination or even found a place in  

the select list, yet the State does not enjoy an unqualified  

prerogative to refuse an appointment in an arbitrary fashion  

or to disregard the merit of the candidates as reflected by  

the merit list prepared at the end of the selection process.  

The  validity  of  the  State’s  decision  not  to  make  an  

appointment is thus a matter which is not beyond judicial  

review before a competent Writ court. If any such decision is  

indeed found to be arbitrary, appropriate directions can be  

issued in the matter.  

14. To  the  same  effect  is  the  decision  of  this  Court  in  

Union  Territory  of  Chandigarh  v.  Dilbagh  Singh  and  

Ors. (1993) 1 SCC 154, where again this Court reiterated  

that while a candidate who finds a place in the select list  

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may have no vested right to be appointed to any post, in the  

absence of any specific rules entitling him to the same, he  

may  still  be  aggrieved  of  his  non-appointment  if  the  

authority concerned acts arbitrarily or in a malafide manner.  

That  was  also  a  case  where  selection  process  had  been  

cancelled by the Chandigarh Administration upon receipt of  

complaints about the unfair and injudicious manner in which  

the select list of candidates for appointment as conductors in  

CTU was prepared by the Selection Board. An inquiry got  

conducted  into  the  said  complaint  proved  the  allegations  

made in the complaint to be true. It was in that backdrop  

that action taken by the Chandigarh Administration was held  

to be neither discriminatory nor unjustified as the same was  

duly  supported  by  valid  reasons  for  cancelling  what  was  

described by this Court to be as a “dubious selection”.   

15. Applying these principles to the case at hand there is  

no gainsaying that while the candidates who appeared in the  

typewriting test had no indefeasible or absolute right to seek  

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an appointment, yet the same did not give a licence to the  

competent  authority  to  cancel  the  examination  and  the  

result thereof in an arbitrary manner.  The least which the  

candidates who were otherwise eligible for appointment and  

who had appeared in the examination that constituted a step  

in  aid  of  a  possible  appointment  in  their  favour,  were  

entitled to is to ensure that the selection process was not  

allowed to be scuttled for malafide reasons or in an arbitrary  

manner.  It is trite that Article 14 of the Constitution strikes  

at  arbitrariness  which  is  an  anti  thesis  of  the  guarantee  

contained in Articles 14 and 16 of the Constitution. Whether  

or not the cancellation of the typing test was arbitrary is a  

question  which  the  Court  shall  have  to  examine  once  a  

challenge  is  mounted  to  any  such  action,  no  matter  the  

candidates  do  not  have  an  indefeasible  right  to  claim an  

appointment against the advertised posts.

16. What then is meant for arbitrary/arbitrariness and how  

far  can  the  decision  of  the  competent  authority  in  the  

present  case  be  described  as  arbitrary?  Black’s  Law  

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Dictionary  describes  the  term  “arbitrary”  in  the  following  

words:

”1. Depending  on  individual  discretion;  specif., determined by a judge rather than by  fixed  rules,  procedures,  or  law.  2.  (Of  a  judicial  decision)  founded  on  prejudice  or  preference  rather  than  on  reason  or  fact.  This type of decision is often termed arbitrary  and capricious.”                            

17. To  the  same  effect  is  the  meaning  given  to  the  

expression “arbitrary”  by  Corpus Juris  Secundum which  

explains the term in the following words:

“ARBITRARY – Based alone upon one’s will,  and not  upon any course of  reasoning and  exercise  of  judgment;  bound  by  no  law;  capricious; exercised according to one’s own  will or  caprice  and  therefore  conveying  a  notion of a tendency to abuse possession of  power;  fixed  or  done  capriciously  or  at  pleasure,  without  adequate  determining  principle, nonrational, or not done or acting  according to reason or judgment; not based  upon  actuality  but  beyond  a  reasonable  extent; not founded in the nature of things;  not governed by any fixed rules or standard;  also, in a somewhat different sense, absolute  in power, despotic, or tyrannical; harsh and  

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unforbearing.  When  applied  to  acts,  “arbitrary”  has  been  held  to  connote  a  disregard of evidence or of the proper weight  thereof;  to  express  an  idea  opposed  to  administrative,  executive,  judicial,  or  legislative discretion; and to imply at least an  element of bad faith, and has been compared  with “willful”.    

18. There is no precise statutory or other definition of the  

term “arbitrary”.  In Kumari Shrilekha Vidyarthi and Ors.  

v. State of U.P. and Ors. (AIR 1991 SC 537), this Court  

explained  that  the  true  import  of  the  expression  

“arbitrariness” is more easily visualized than precisely stated  

or defined and that whether or not an act is arbitrary would  

be determined on the facts and circumstances of  a given  

case.  This Court observed:

     “The  meaning  and  true  import  of  arbitrariness  is  more  easily  visualized  than  precisely  stated  or  defined.  The  question,  whether an impugned act is arbitrary or not,  is ultimately to be answered on the facts and  in  the  circumstances  of  a  given  case.  An  obvious test to apply is to see whether there  is any discernible principle emerging from the  impugned act and if  so,  does it  satisfy  the  test  of  reasonableness.  Where  a  mode  is  prescribed for doing an act and there is no  

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impediment  in  following  that  procedure,  performance  of  the  act  otherwise  and  in  a  manner  which  does  not  disclose  any  discernible principle which is reasonable, may  itself attract the vice of arbitrariness. Every  State action must be informed by reason and  it follows that an act uninformed by reason,  is  arbitrary.  Rule  of  law  contemplates  governance  by  laws  and  not  by  humour,  whims or caprices of the men to whom the  governance is entrusted for the time being. It  is trite that ‘be you ever so high, the laws are  above you’. This is what men in power must  remember, always.”

19. Dealing with the principle governing exercise of official  

power Prof. De Smith, Woolf & Jowell in their celebrated  

book  on  “Judicial  Review  of  Administrative  Action”  

emphasized how the decision-maker invested with the wide  

discretion  is  expected  to  exercise  that  discretion  in  

accordance with the general principles governing exercise of  

power  in  a  constitutional  democracy  unless  of  course  the  

statute  under  which  such  power  is  exercisable  indicates  

otherwise. One of the most fundamental principles of rule of  

law recognized in all democratic systems is that the power  

vested in  any  competent  authority  shall  not  be  exercised  

arbitrarily and that the power is exercised that it does not  

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lead to any unfair discrimination. The following passage from  

the above is in this regard apposite:

“We have seen in a number of situations how  the  scope  of  an  official  power  cannot  be  interpreted  in  isolation  from  general  principles governing the exercise of power in  a  constitutional  democracy.  The  courts  presume  that  these  principles  apply  to  the  exercise of all  powers and that even where  the  decision-maker  is  invested  with  wide  discretion, that discretion is to be exercised  in  accordance  with  those  principles  unless  Parliament  clearly  indicates  otherwise.  One  such  principle,  the  rule  of  law,  contains  within it a number of requirements such as  the right of the individual to access to the law  and  that  power  should  not  be  arbitrarily  exercised.  The  rule  of  law  above  all  rests  upon the  principle  of  legal  certainty,  which  will be considered here, along with a principle  which  is  partly  but  not  wholly  contained  within the rule of law, namely, the principle  of equality, or equal treatment without unfair  discrimination.”

20. Arbitrariness in the making of an order by an authority  

can  manifest  itself  in  different  forms.  Non-application  of  

mind by the authority making the order is only one of them.  

Every order passed by a public authority must disclose due  

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and proper application of mind by the person making the  

order.  This  may  be  evident  from  the  order  itself  or  the  

record contemporaneously maintained. Application of mind  

is best demonstrated by disclosure of mind by the authority  

making the order. And disclosure is best done by recording  

the  reasons  that  led  the  authority  to  pass  the  order  in  

question.  Absence of reasons either in the order passed by  

the authority or in the record contemporaneously maintained  

is  clearly  suggestive  of  the  order  being  arbitrary  hence  

legally unsustainable.  

21. In the instant case the order passed by the competent  

authority  does  not  state  any  reasons  whatsoever  for  the  

cancellation of the typing test.  It is nobody’s case that any  

such reasons  were  set  out  even in  any contemporaneous  

record or file. In the absence of reasons in support of the  

order it is difficult to assume that the authority had properly  

applied its mind before passing the order cancelling the test.  

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22. Mr.  Malhotra’s  contention  that  the  order  was  passed  

entirely  on  the  basis  of  the  complaint  received  from the  

unsuccessful candidates is also of no assistance.  The fact  

that some representations were received against the test or  

the  procedure  followed  for  the  same  could  not  by  itself  

justify cancellation of the test unless the authority concerned  

applied its mind to the allegations levelled by the persons  

making the representation and came to the conclusion that  

the grievance made in the complaint was not without merit.  

If a test is cancelled just because some complaints against  

the same have been made howsoever frivolous, it may lead  

to a situation where no selection process can be finalized as  

those  who  fail  to  qualify  can  always  make  a  grievance  

against  the test  or  its  fairness.  What is  important  is  that  

once  a  complaint  or  representation  is  received  the  

competent  authority  applies  its  mind  to  the  same  and  

records reasons why in its opinion it is necessary to cancel  

the  examination  in  the  interest  of  purity  of  the  selection  

process or with a view to preventing injustice or prejudice to  

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those  who  have  appeared  in  the  same.  That  is  precisely  

what had happened in  Dilbagh Singh’s case (supra). The  

examination  was  cancelled  upon  an  inquiry  into  the  

allegations  of  unjust,  arbitrary  and  dubious  selection  list  

prepared  by  the  Selection  Board  in  which  the  allegations  

were found to be correct. Even in  Tarun K. Singh’s  case  

(supra)  relied  upon  by  Mr.  Malhotra  an  inquiry  into  the  

complaints  received  against  the  selection  process  was  

conducted  no  matter  after  the  cancellation  of  the  

examination.  This  Court  in  that  view  held  that  since  the  

selection  process  was  vitiated  by  procedural  and  other  

infirmities cancellation thereof was perfectly justified.   

23. That is not, however, the position in the instant case.  

The order of cancellation passed by the competent authority  

was not preceded even by a prima facie satisfaction about  

the correctness of the allegations made by the unsuccessful  

candidates  leave  alone  an  inquiry  into  the  same.  The  

minimum that was expected of the authority was a due and  

proper application of mind to the allegations made before it  

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and formulation and recording of reasons in support of the  

view that the competent authority was taking. There may be  

cases  where  an  enquiry  may  be  called  for  into  the  

allegations,  but  there  may also  be cases,  where  even on  

admitted facts or facts verified from record or an enquiry  

howsoever summary the same maybe, it is possible for the  

competent authority to take a decision, that there are good  

reasons for making the order which the authority eventually  

makes.  But we find it difficult to sustain an order that is  

neither based on an enquiry nor even a prima facie view  

taken  upon  a  due  and  proper  application  of  mind  to  the  

relevant  facts.  Judged  by  that  standard  the  order  of  

cancellation passed by the competent authority falls short of  

the legal requirements and was rightly quashed by the High  

Court.

24. We may hasten to add that while application of mind to  

the  material  available  to  the  competent  authority  is  an  

essential pre-requisite for the making of a valid order, that  

requirement should not be confused with the sufficiency of  

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such material to support any such order.  Whether or not  

the material placed before the competent authority was in  

the instant case sufficient to justify the decision taken by it,  

is not in issue before us.  That aspect may have assumed  

importance only  if  the competent authority  was shown to  

have applied its mind to whatever material was available to  

it  before  cancelling  the  examination.  Since  application  of  

mind  as  a  thresh-hold  requirement  for  a  valid  order  is  

conspicuous  by  its  absence  the  question  whether  the  

decision  was  reasonable  having  regard  to  the  material  

before  the  authority  is  rendered  academic.  Sufficiency  or  

otherwise  of  the  material  and  so  also  its  admissibility  to  

support  a  decision  the  validity  whereof  is  being  judicially  

reviewed may even otherwise depend upon the facts  and  

circumstances of each case.  No hard and fast rule can be  

formulated in that regard nor do we propose to do so in this  

case.   So also whether  the competent authority  ought  to  

have  conducted  an  enquiry  into  or  verification  of  the  

allegations  before  passing  an  order  of  cancellation  is  a  

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matter that would depend upon the facts and circumstances  

of each case.  It may often depend upon the nature, source  

and credibility of the material placed before the authority.  

It  may  also  depend  upon  whether  any  such  exercise  is  

feasible having regard to the nature of the controversy, the  

constraints  of  time,  effort  and  expense.   But  what  is  

absolutely essential is that the authority making the order is  

alive to the material on the basis of which it purports to take  

a decision.  It cannot act mechanically or under an impulse,  

for a writ court judicially reviewing any such order cannot  

countenance  the  exercise  of  power  vested  in  a  public  

authority except after due and proper application of mind.  

Any other view would amount to condoning a fraud upon  

such power which the authority exercising the same holds in  

trust only to be exercised for a legitimate purpose and along  

settled principles of administrative law.

25. The next question then is whether the selection should  

be finalized on the basis of the test held earlier or the matter  

allowed to be re-examined by the authority in the context of  

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the representation received by it.  In our opinion the latter  

course would be more in tune with the demands of justice  

and  fairness  especially  when  a  second  test  has  been  

conducted  in  which  all  the  in  service  candidates  have  

appeared.  The  result  of  this  examination/test  has  not,  

however,  been declared so  far  apparently  because of  the  

pendency  of  these  proceedings.  If  upon  due  and  proper  

consideration  of  the  representation  received  from  the  

candidates who were unsuccessful in the first examination,  

the competent authority comes to the conclusion that the  

test earlier held suffered from any infirmity or did not give a  

fair opportunity to all the candidates, it shall be free to pass  

a fresh order cancelling the said examination after recording  

such  a  finding  in  which  event  the  second  test  conducted  

under the directions of the Tribunal would become the basis  

for the selection process to be finalized in accordance with  

law. In case, however, the authority comes to the conclusion  

that the earlier  test  suffered from no procedural  or  other  

infirmity or did not cause any prejudice to any candidate,  

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the second test/examination shall  stand cancelled and the  

process of selection finalized on the basis of the test held  

earlier. The order passed by the High Court is to that extent  

modified and the present  appeals  disposed of  leaving the  

parties to bear their own costs.  In order to avoid any delay  

in the finalization of the process of appointments which have  

already  been  delayed,  we  direct  that  the  competent  

authority  shall  pass  an  appropriate  order  on  the  subject  

expeditiously but not later than two months from today.    

                          ……………………………..…J.

(AFTAB ALAM)

………………………..………J. (T.S. THAKUR)

New Delhi July 7, 2010

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